(HC) Powell v. Covello ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFREY DEWAYNE POWELL, No. 2:21-cv-02263-DAD-EFB (HC) 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 PEOPLE OF THE STATE OF CALIFORNIA, 15 Respondent. 16 17 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 18 28 U.S.C. § 2254. On August 16, 2022, the court granted respondent’s motion to dismiss the 19 petition for containing unexhausted claims. ECF No. 21. The court granted petitioner 21 days to 20 file an amended petition containing only exhausted claims. Id. On September 9, 2022, petitioner 21 notified the court that he would like to proceed with his exhausted claims. ECF No. 23. He did 22 not, however, file an amended petition containing only the exhausted claims as directed by the 23 court. Accordingly, the court granted petitioner another 21 days in which to file the amended 24 petition. ECF No. 24. The court also warned petitioner that failure to comply could result in a 25 recommendation that this action be dismissed. Id. 26 The time for acting has passed and petitioner has not filed an amended petition or 27 otherwise responded to the court’s most recent order. Thus, it appears that petitioner is unable or 28 unwilling to file an amended petition as ordered. He has failed to prosecute this action. ] Accordingly, it is hereby RECOMMENDED that this action be DISMISSED without 2 || prejudice. 3 These findings and recommendations are submitted to the United States District Judge 4 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 5 || after being served with these findings and recommendations, any party may file written 6 || objections with the court and serve a copy on all parties. Such a document should be captioned 7 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 8 | shall be served and filed within fourteen days after service of the objections. Failure to file 9 || objections within the specified time may waive the right to appeal the District Court’s order. 10 || Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 11 | 1991). In his objections petitioner may address whether a certificate of appealability should issue 12 || in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 13 || 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a 14 | final order adverse to the applicant). 15 || Dated: October 27, 2022. 16 17 □□ PDEA EDMUND F. BRENNAN 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28