(HC) Pena v. Frauenheim ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARIO PENA, No. 2:15-cv-0416 JAM CKD P 12 Petitioner, 13 v. FINDINGS & RECOMMENDATIONS 14 SCOTT FRAUENHEIM, 15 Respondent. 16 17 On December 29, 2020, petitioner was granted 21 days within which to show cause why 18 this action should not be dismissed. Petitioner was informed that failure to respond to the court’s 19 order would result in a recommendation that this action be dismissed. Petitioner has not 20 responded to the court’s order. 21 Although it appears from the file that petitioner’s copy of the order to show cause was 22 returned, petitioner was properly served. It is petitioner’s responsibility to keep the court 23 apprised of his current address at all times. Pursuant to Local Rule 182(f), service of documents 24 at the record address of the party is fully effective. 25 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 28 after being served with these findings and recommendations, any party may file written 1 | objections with the court and serve a copy on all parties. Such a document should be captioned 2 | “Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner 3 | may address whether a certificate of appealability should issue in the event he files an appeal of 4 | the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district 5 | court must issue or deny a certificate of appealability when it enters a final order adverse to the 6 | applicant). Where, as here, a habeas petition is dismissed on procedural grounds, a certificate of 7 | appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it 8 | debatable whether the district court was correct in its procedural ruling;’ and (2) ‘that jurists of 9 | reason would find it debatable whether the petition states a valid claim of the denial of a 10 | constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. 11 | McDaniel, 529 U.S. 473, 484 (2000)). Any response to the objections shall be served and filed 12 | within fourteen days after service of the objections. The parties are advised that failure to file 13 | objections within the specified time may waive the right to appeal the District Court’s order. 14 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 15 | Dated: January 25, 2021 rd f | Gx 16 CAROLYN K.DELANEY 7 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 pena) 16.s 21 22 23 24 25 26 27 28