(HC) Gambino-Ruiz v. Warden ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE GAMBINO-RUIZ, No. 2:23-cv-00955-DAD-KJN (HC) 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 WARDEN, HABEAS PETITION DUE TO PETITIONER’S FAILURE TO PROSECUTE 15 Respondent. AND TO COMPLY WITH A COURT ORDER 16 (Doc. No. 4) 17 18 Petitioner Jose Gambino-Ruiz is a federal prisoner proceeding pro se with a petition for a 19 writ of habeas corpus pursuant to 28 U.S.C. § 2241. The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On June 26, 2023, the court ordered petitioner to either file a motion to proceed in forma 22 pauperis or pay the required filing fee in order to proceed with this habeas action. (Doc. No. 3.) 23 The court provided petitioner with thirty days to comply with that order. (Id. at 1.) Petitioner has 24 not paid the required filing fee to proceed with this action nor filed an application to proceed in 25 forma pauperis, and the deadline in which to do so has passed. 26 Accordingly, on August 3, 2023, the assigned magistrate judge issued findings and 27 recommendations recommending that this action be dismissed, without prejudice, due to 28 petitioner’s failure to comply with the court’s order and failure to prosecute this action. (Doc. 1 | No.4.) The findings and recommendations were served upon petitioner and contained notice that 2 || any objections thereto were to be filed within fourteen (14) days after service. Ud. at 1.) To date, 3 | petitioner has not filed any objections and the time in which to do so has passed. 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 5 | de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 6 | pending findings and recommendations are supported by the record and proper analysis. 7 Accordingly, 8 1. The findings and recommendations issued on August 3, 2023 (Doc. No. 4) are 9 adopted in full; 10 2. The petition for writ of habeas corpus (Doc. No. 1) is dismissed, without 11 prejudice;' and 12 3. The Clerk of the Court is directed to close this case. 13 IT IS SO ORDERED. | pated: _ October 3, 2023 □□□ A. 2, ye 15 DALE A. DROZD 6 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 | Because petitioner is a federal prisoner bringing a § 2241 petition, a certificate of appealability 27 || is not required. See Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008) (“The plain language of [28 U.S.C.] § 2253(c)(1) does not require a petitioner to obtain a COA in order to appeal the 28 | denial of a § 2241 petition.”).