(HC) Clark v. Fisher ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAKE CLARK, No. 2:17-cv-02574 TLN GGH P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATION 14 RAYTHEL FISHER, JR., 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. On February 6, 2019, petitioner filed his first amended petition for 19 a writ of habeas corpus. ECF No. 34. On February 22, 2019, the court granted petitioner thirty 20 days to file a second amended petition in compliance with the court’s instructions. ECF No. 35. 21 On March 27, 2019, petitioner requested a sixty-day extension of time to file his second amended 22 petition, which the court granted in part. ECF Nos. 36, 37. On May 3, 2019, the undersigned 23 issued an order to show cause for petitioner’s failure to file his second amended petition within 24 the required timeframe. ECF No. 38. On May 20, 2019, petitioner requested a second extension 25 of time to file his amended petition, which the court granted in part giving petitioner an additional 26 thirty days to file his amended petition. ECF Nos. 39, 40. The undersigned informed petitioner 27 that no further extensions would be granted. ECF No. 40. On June 26, 2019, petitioner requested 28 a third extension of time to file his amended petition, which the court again granted. ECF Nos. 1 41, 42. The undersigned informed petitioner the following: 2 The previous order granting an extension of time provided that there would be no further extensions. However, the undersigned 3 recognizes that the potential habeas action involves a life sentence and will grant one further extension. A failure to timely file the 4 amended habeas petition in accordance with the court’s previous instructions will result in a recommendation of dismissal. 5 6 ECF No. 42. Petitioner has again failed to now file his second amended petition. 7 The court has gone the extra yard in recognizing petitioner’s pro se status. Even before 8 the filing of the First Amended Petition, Findings and Recommendations were filed 9 recommending dismissal of the petition based on petitioner’s inaction, but this Findings and 10 Recommendation was vacated to give petitioner another chance to litigate his action. Afterwards, 11 as evidenced by the discussion above, petitioner continues to view court ordered time 12 requirements as optional. Petitioner has wasted the court’s time. 13 Accordingly, IT IS HEREBY RECOMMENDED that: 14 1. The petition be dismissed; and 15 2. The District Court decline to issue a certificate of appealability. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections 21 shall be served and filed within fourteen days after service of the objections. The parties are 22 advised that failure to file objections within the specified time may waive the right to appeal the 23 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 Dated: August 19, 2019 /s/ Gregory G. Hollows 25 UNITED STATES MAGISTRATE JUDGE 26 27 28