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Medina v. Cramer

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 28, 2009

FRANCISCO PEREZ MEDINA, PETITIONER,
v.
M. CRAMER, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding with appointed counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 28, 2008, respondent filed a motion to dismiss on the grounds that this action is barred by the statute of limitations, by more than six years, and requested a hearing for December 11, 2008. On November 25, 2008, petitioner, through counsel filed a stipulation and agreement for the hearing to be rescheduled and the hearing was moved to February 5, 2009, as petitioner's counsel needed additional time to prepare. On February 3, 2009, petitioner, through counsel and respondent stipulated and agreed that the hearing be removed from the calendar and the matter be submitted on the briefs on file. As of that date petitioner had not filed an opposition to the motion to dismiss. On April 13, 2009, the undersigned ordered that petitioner file a response within ten days. On April 20, 2009, petitioner, through counsel submitted a statement of non-opposition to the motion to dismiss.

Accordingly, as petitioner is not opposing the motion to dismiss, IT IS HEREBY RECOMMENDED that respondent's October 28, 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, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are 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).

20090428

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