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Eligio Cervantes v. State of California

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


August 2, 2011

ELIGIO CERVANTES, PETITIONER,
v.
STATE OF CALIFORNIA, RESPONDENT.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a California civil detainee proceeding pro se with a petition for writ of habeas corpus under 28 U.S.C. § 2254. On February 8, 2011, the court dismissed petitioner's original petition because petitioner challenged a Lassen County conviction for child molestation and the fact that he has been civilly committed under California's Sexually Violent Predators Act (Cal. Welf. & Inst. Code § 6000 et seq.) despite the fact that Rule 2(e) of the Rules Governing Section 2254 Cases permits habeas petitioners to challenge only one judgment of one state court per habeas petition. Petitioner was granted leave to submit an amended petition to challenge his Lassen County conviction for child molestation or his commitment under California's Sexually Violent Predators Act, but not both. Petitioner was warned that failure to file an amended petition in compliance with February 8, 2011 order would result in a recommendation that this action be dismissed.

On February 22, 2011, petitioner filed an amended habeas petition in which he, again, challenges his Lassen County conviction and his civil commitment. Because petitioner has failed to comply with Rule 2(e) of the Rules Governing Section 2254 Cases and the February 8, 2011 order of this court, the court will recommend that this action be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.

Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a district court judge to this case; and

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 twenty-one days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Petitioner is 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).

20110802

© 1992-2011 VersusLaw Inc.



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