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Suggs v. Walker

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


September 9, 2010

TYSON JOIEL SUGGS, PETITIONER,
v.
JAMES WALKER, WARDEN,*FN1 RESPONDENT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Petitioner is a state prisoner proceeding without counsel who seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, based on a challenge to his 1996 conviction. Both petitioner and respondent filed consents to the jurisdiction of the magistrate judge for all purposes. (Dkt. Nos. 4, 18.) On April 19, 2010, respondent moved to dismiss the petition for lack of jurisdiction on the ground that the petition was filed beyond the one-year statute of limitations contained in 28 U.S.C. § 2244(d), and is unexhausted pursuant to 28 U.S.C. § 2254(b). (Dkt. No. 20.)

Petitioner did not respond to the motion to dismiss. On June 21, 2010, this court ordered petitioner to show cause why his failure to respond should not be deemed a waiver of his opposition to the motion, and directed petitioner to file such opposition. (Dkt. No. 23.) In response, petitioner filed a motion to withdraw his consent to the jurisdiction of the magistrate judge. (Dkt. No. 24.) On July 12, 2010, the undersigned denied petitioner's motion. (Dkt. No. 27.)

To date, petitioner has not responded to the court's order to show cause nor has he filed an opposition to respondent's motion to dismiss. The court will therefore construe petitioner's failure to respond as a waiver of any opposition to the granting of respondent's motion. See E.D. Cal. L.R. ("Local Rule") 230(l) ("Failure of the responding party to file an opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion and may result in the imposition of sanctions.").

Accordingly, IT IS HEREBY ORDERED that:

1. Respondent's motion to dismiss (Dkt. No. 20) petitioner's habeas corpus petition is granted; and

2. The Clerk of Court is directed to close this case.

SO ORDERED.


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