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Joseph White v. Matthew Cate

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


March 2, 2011

JOSEPH WHITE PETITIONER,
v.
MATTHEW CATE, RESPONDENT.

FINDINGS AND 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 June 28, 2010, respondent filed a motion to dismiss. On February 2, 2011, the court ordered petitioner to file an opposition or statement of non-opposition in response to the motion to dismiss within twenty-one days. The court apprised petitioner that failure to comply with the order would result in a recommendation that this action be dismissed under Rule 41(b) of the Federal Rules of Civil Procedure. More than twenty-one days has now passed, and petitioner has not filed an opposition or statement of non-opposition to the motion.

IT IS THEREFORE RECOMMENDED that this case be dismissed. See Fed. R. Civ. P. 41(b); Rule 12, Rules Governing § 2254 Cases.

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 fourteen 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." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant).

20110302

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