IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 20, 2011
UNITED STATES OF AMERICA, RESPONDENT,
ARMANDO SANCHEZ, MOVANT.
FINDINGS AND RECOMMENDATIONS
Movant is a federal prisoner proceeding pro se with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. On January 28, 2011, respondent filed a motion to dismiss on the grounds that the section 2255 motion is barred by the statute of limitations. The court's order filed February 10, 2011, set a briefing schedule for disposition of the motion. The order granted movant a period of thirty days in which to file and serve an opposition. The time for filing an opposition passed and movant neither filed an opposition nor otherwise responded to the court's order. Accordingly, on April 5, 2011, the court reminded movant of his obligation to file an opposition, granted him twenty-one additional days to file his opposition and warned him that failure to do so would result in a recommendation that his § 2255 motion be dismissed.
The time for acting has passed and movant has not filed an opposition or a statement of no opposition nor otherwise responded to the April 5, 2011 order.
Accordingly, it is RECOMMENDED that movant's § 2255 motion be dismissed and the Clerk be directed to close the companion civil case, No. Civ. S-10-2973 GEB EFB. Fed. R. Civ. P. 41(b); Rule 12, Rules Governing § 2255 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).
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