(HC) Phan v. Covello ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MINH KHA HOANG PHAN, No. 2:21-cv-2219 TLN CKD P 12 Petitioner, 13 v. ORDER AND 14 P. CAVELLO, FINDINGS AND RECOMMENDATIONS 15 Respondent. 16 17 On March 14, 2022, respondent timely-filed a motion to dismiss petitioner’s petition for a 18 writ of habeas corpus. Apparently petitioner never received the motion which resulted in 19 petitioner filing what the court construes as a motion for entry of default judgment on April 31, 20 2022. 21 Good cause appearing, the court will order respondent to re-serve the motion to dismiss. 22 Petitioner will be given additional time to respond and then respondent will be given additional 23 time to file a reply. The court will recommend that petitioner’s motion for default be denied. 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. Respondent shall re-serve on petitioner the motion to dismiss originally filed March 26 14, 2022 within 7 days. Petitioner’s opposition, or statement of non-opposition to the motion, is 27 due within 30 days of service of the motion to dismiss. Petitioner’s failure to comply with this 28 ///// 1 | order will result in a recommendation that this action be dismissed. Respondent’s reply shall be 2 || filed within 21 days of service of petitioner’s opposition or statement of non-opposition. 3 2. Petitioner’s July 11, 2022 request to file a “‘sur-reply” is denied. 4 IT IS HEREBY RECOMMENDED that petitioner’s March 31, 2022 motion for 5 || “summary judgement,” which is essentially a motion for entry of default judgement, be denied. 6 These findings and recommendations are submitted to the United States District Judge 7 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 8 | after being served with these findings and recommendations, any party may file written 9 || objections with the court and serve a copy on all parties. Such a document should be captioned 10 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 11 || objections shall be served and filed within fourteen days after service of the objections. The 12 || parties are advised that failure to file objections within the specified time may waive the right to 13 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 14 | Dated: August 3, 2022 / aa / x ly a 1s CAROLYN K DELANEY 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 | 1 20 phan2219.def 21 22 23 24 25 26 27 28