(HC) Booker v. Lynch ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES BOOKER, Case No. 2:20-cv-01894-TLN-JDP (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS THAT THIS ACTION BE DISMISSED FOR 13 v. FAILURE TO PROSECUTE, FAILURE TO COMPLY WITH COURT ORDERS, AND 14 J. LYNCH, FAILURE TO STATE A CLAIM 15 Respondent. OBJECTIONS DUE WITHIN FOURTEEN DAYS 16 17 Petitioner, a state prisoner without counsel, filed a writ of habeas corpus under 28 U.S.C. 18 § 2254. ECF No. 1. On October 6, 2020, I dismissed that petition because it appeared to contain 19 only unexhausted claims that are potentially time-barred. ECF No. 8 at 2. Petitioner was granted 20 thirty days to file an amended petition that addressed both issues. Rather than filing an amended 21 petitioner, he filed a motion to stay the case. ECF No. 9. On January 6, 2021, the court denied 22 petitioner’s motion for a stay. ECF No. 13. 23 On February 25, 2021, petitioner, having still not filed an amended petition, was ordered 24 to show cause within twenty-one days why this case should not be dismissed for failure to 25 prosecute and failure to state a viable claim. ECF No. 14. In response, petitioner filed a motion 26 for appointment of counsel and for an extension of time to respond to the February 26, 2021 order 27 to show cause. ECF No. 15. I denied petitioner’s motion for appointment of counsel but granted 28 him until June 7, 2021 to respond to the February 26 order. I also ordered him to file an amended 1 | petition by no later than June 7, 2021. Jd. Petitioner was also warned that failure to comply with 2 | my order would result in a recommendation that this action be dismissed. Jd. 3 The deadline has passed, and petitioner has not filed an amended petition nor otherwise 4 | responded to the April 6, 2021 order. Accordingly, it is hereby RECOMMENDED that: 5 1. this action be dismissed for failure to prosecute, failure to comply with court orders, 6 | and failure to state a viable claim for the reasons set forth in the court’s October 6, 2020 order, 7 | see ECF No. 8; and 8 2. the Clerk of Court be directed to close the case. 9 These findings and recommendations are submitted to the United States District Judge 10 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 11 | after being served with these findings and recommendations, any party may file written 12 | objections with the court and serve a copy on all parties. Such a document should be captioned 13 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 | objections shall be served and filed within fourteen days after service of the objections. The 15 | parties are advised that failure to file objections within the specified time may waive the right to 16 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 17 | v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 19 IT IS SO ORDERED. 20 ( q oy — Dated: _ July 25, 2021 21 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28