(HC) Santa Cruz v. Warden ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ENIO ZARAGOZA SANTA CRUZ, No. 2:23-cv-0940 CKD P 12 Petitioner, 13 v. ORDER AND 14 WARDEN, U.S.P. LOMPOC, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 On August 18, 2023, petitioner’s petition for a writ of habeas was dismissed with leave to 18 amend. Petitioner was warned the failure to file an amended petition would result in a 19 recommendation that this action be dismissed. The time provided to petitioner to file an amended 20 petition has expired and petitioner has not filed an amended petition. 21 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a district 22 court judge to this case; and 23 IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See 24 Local Rule 110; Fed. R. Civ. P. 41(b). 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 27 after being served with these findings and recommendations petitioner may file written objections 28 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 1 | and Recommendations.” In his objections petitioner may address whether a certificate of 2 || appealability should issue in the event he files an appeal of the judgment in this case. See Rule 3 || 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a 4 || certificate of appealability when it enters a final order adverse to the applicant). Where, as here, a 5 || habeas petition is dismissed on procedural grounds, a certificate of appealability “should issue if 6 || the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the district court 7 || was correct in its procedural ruling;’ and (2) ‘that jurists of reason would find it debatable 8 | whether the petition states a valid claim of the denial of a constitutional right.’” Morris v. 9 || Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 10 | (2000)). Petitioner is advised that failure to file objections within the specified time may waive 11 | the nght to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 12 | Dated: October 25, 2023 / aa / x ly a 13 CAROLYN K DELANEY 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 | 1 18 sant0940.fta.hab 19 20 21 22 23 24 25 26 27 28