(HC)Moore v. Sherman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARQUIS DOMINIQUE MOORE, No. 2:19-cv-1131 MCE KJN P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 STU SHERMAN, 15 Respondents. 16 17 Petitioner is a state prisoner, proceeding pro se, with an application for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. On January 27, 2020, respondent filed a motion to dismiss 19 this action because it was filed beyond the one-year statute of limitations. 28 U.S.C. § 2244(d). 20 Petitioner did not oppose the motion. By order filed March 5, 2020, petitioner was ordered to 21 show cause, within thirty days, why this action should not be dismissed based on his failure to file 22 an opposition. On April 6, 2020, petitioner filed “objections,” but on April 16, 2020, the 23 undersigned found that petitioner’s objections failed to address respondent’s motion to dismiss, 24 instead arguing the merits of his petition. Petitioner was granted an additional thirty days in 25 which to oppose respondent’s motion, and reminded that such failure would be deemed a waiver 26 of any opposition to the granting of the motion. The thirty-day period has now expired, and 27 petitioner has not shown cause as required under the March 5, 2020 order, filed an opposition to 28 respondent’s motion, or otherwise responded to the court’s order. wOAIe 2 LUV VE SVEN LENG IN RVC, Ge eore POY oe 1 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without 2 | prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b). 3 These findings and recommendations are submitted to the United States District Judge 4 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty days after 5 | being served with these findings and recommendations, any party may file written objections with 6 | the court and serve a copy on all parties. Such a document should be captioned “Objections to 7 | Magistrate Judge’s Findings and Recommendations.” In his objections petitioner may address 8 || whether a certificate of appealability should issue in the event he files an appeal of the judgment 9 | inthis case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must 10 | issue or deny a certificate of appealability when it enters a final order adverse to the applicant). 11 | Where, as here, a habeas petition is dismissed on procedural grounds, a certificate of appealability 12 | “should issue . . . if the prisoner shows, at least, [1] that jurists of reason would find it debatable 13 | whether the petition states a valid claim for the denial of a constitutional right, and [2] that jurists 14 || of reason would find it debatable whether the district court was correct in its procedural ruling.” 15 | Petrocelli v. Angelone, 248 F.3d 877, 883-84 (9th Cir. 2001) (quoting Slack v. McDaniel, 529 16 | U.S. 473, 478 (2000)). Any response to the objections shall be served and filed within fourteen 17 | days after service of the objections. The parties are advised that failure to file objections within 18 || the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 19 | F.2d 1153 (9th Cir. 1991). 20 | Dated: May 28, 2020 Aectl Aharon 22 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 23 /moorl 131.157 24 25 26 27 28