IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 7, 2011
MATTHEW DAVID HAFF, PETITIONER,
MATTHEW CATE, RESPONDENT.
FINDINGS AND RECOMMENDATIONS
Petitioner is a former state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. On February 1, 2011, the court ordered petitioner to file, within 30 days, an opposition or statement of no opposition to respondent's December 2, 2010 motion to dismiss. Dckt. No. 17. The court admonished petitioner that failure to do so would result in a recommendation that this action be dismissed without prejudice.
On March 7, 2011 petitioner filed a motion for an extension of time to oppose the motion to dismiss, due to his release on parole and subsequent move. Dckt. No. 19. Petitioner informed the court that he expected to complete the opposition early, but sought a 60-day extension in order to ensure "thoroughness." Id. The motion was granted on March 15, 2011, providing petitioner 60 days from service of the order to file the opposition. Dckt. No. 20.
More than eighty days have now elapsed since the court granted petitioner's request for an extension of time. Petitioner has not filed the opposition, sought additional time, or otherwise responded to the court's order. Accordingly, the undersigned will recommend that this action be dismissed for failure to prosecute. L.R. 110; Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming district court's dismissal pursuant to local rule due to plaintiff's failure to file an opposition to defendants' motion to dismiss); see Fed. R. Civ. P. 41(b).
Accordingly, it is hereby RECOMMENDED that this action be dismissed without prejudice.
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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