(HC) Velasquez-Rincon v. Warden ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 J.M. VELASQUEZ-RINCON, No. 2:23-cv-0837 CKD P 12 Petitioner, 13 v. ORDER AND 14 WARDEN, F.C.I HERLONG, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 On May 10, 2023, petitioner was ordered to file an in forma pauperis affidavit or to pay 18 the appropriate filing fee, within thirty days, and warned that failure to comply would result in a 19 recommendation that his petition be dismissed. The thirty-day period has now expired, and 20 petitioner has not responded to the court’s order, has not filed an in forma pauperis affidavit, and 21 has not paid the appropriate filing fee. 22 Accordingly, IIT IS HEREBY ORDERED that the Clerk of the Court assign a district 23 court judge to this case; and 24 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. 25 These findings and recommendations are submitted to the United States District Judge assigned to 26 the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being 27 served with these findings and recommendations, any party may file written objections with the 28 court and serve a copy on all parties. Such a document should be captioned “Objections to 1 | Magistrate Judge’s Findings and Recommendations.” In his objections petitioner may address 2 || whether a certificate of appealability should issue in the event he files an appeal of the judgment 3 || in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must 4 || issue or deny a certificate of appealability when it enters a final order adverse to the applicant). 5 || Where, as here, a habeas petition is dismissed on procedural grounds, a certificate of appealability 6 || “should issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether 7 || the district court was correct in its procedural ruling;’ and (2) ‘that jurists of reason would find it 8 || debatable whether the petition states a valid claim of the denial of a constitutional right.’” Morris 9 || v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 10 | (2000)). Any response to the objections shall be served and filed within fourteen days after 11 || service of the objections. The parties are advised that failure to file objections within the 12 || specified time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 13 | F.2d 1153 (9th Cir. 1991). 14 || Dated: June 27, 2023 fed) / dha MIG f- A. CAROLYNK.DELANEY 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 inay vela0837_fppt-hab 21 22 23 24 25 26 27 28