IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 31, 2008
AUGUSTINE OLIVO, PETITIONER,
CONSTANCE REESE, WARDEN, ET AL., RESPONDENT.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 9, 2008, respondent filed a motion to dismiss. Petitioner did not file an opposition to the motion and an order to show cause issued on March 28, 2008. On April 23, 2008, petitioner requested an extension of time to respond to the motion. On May 2, 2008, petitioner was granted a thirty-day extension of time to respond, but petitioner has not filed an opposition. Local Rule 78-230(m) provides in part: "Failure of the responding party to file written opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion . . . ."
In the instant case, petitioner has been warned that his failure to oppose the motion to dismiss may be deemed a waiver of opposition to the motion. Based on petitioner's failure to file an opposition, the court concludes that petitioner has consented to respondent's motion to dismiss. In the alternative, the court has reviewed the petition and the motion to dismiss and finds that while petitioner has arguably set forth a colorable ground for relief, respondent's motion has sufficient merit.
Good cause appearing, IT IS HEREBY RECOMMENDED that respondent's January 9, 2008, motion to dismiss be granted.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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