(HC) Love v. Covello ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANTE LOVE, No. 2:20-cv-0007 KJM AC P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 PATRICK COVELLO, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a habeas corpus petition filed pursuant 18 to 28 U.S.C. § 2254. On May 28, 2020, respondent filed a motion to dismiss the petition. ECF 19 No. 14. By order filed July 15, 2020, after respondent re-served the motion, petitioner was 20 ordered to file a response within thirty days. ECF No. 16. Instead of filing a response to the 21 motion to dismiss, petitioner filed a motion for counsel and for an evidentiary hearing on 22 equitable tolling. ECF No. 18. The motion was denied, and petitioner was advised that if he 23 wanted to argue that he was entitled to equitable tolling of the statute of limitations, he would 24 have to file an opposition to the motion to dismiss that included specific facts in support of 25 equitable tolling. ECF No. 19 at 2. Petitioner was given an additional twenty-one days to file an 26 opposition or statement of non-opposition to the motion to dismiss, and was informed that failure 27 to file an opposition would result in a recommendation that this action be dismissed without 28 prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). Id. The 1 || twenty-one-day period has now expired, and petitioner has not filed an opposition to the motion 2 | or otherwise responded to the court’s order. 3 For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be 4 | dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b). 5 These findings and recommendations are submitted to the United States District Judge 6 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 7 | after being served with these findings and recommendations, any party may file written 8 || objections with the court and serve a copy on all parties. Such a document should be captioned 9 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 10 || objections shall be filed and served within fourteen days after service of the objections. The 11 || parties are advised that failure to file objections within the specified time may waive the right to 12 || appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 | DATED: January 19, 2021 ~ 14 Chttien— Clare ALLISON CLAIRE 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28