IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
April 23, 2012
UNITED STATES OF AMERICA, RESPONDENT,
THOMAS ANTHONY HYATT, MOVANT.
FINDINGS AND RECOMMENDATIONS
Movant, a federal prisoner proceeding without counsel, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. On December 1, 2010, respondent filed a motion to dismiss the instant section 2255 motion as barred by the statute of limitations. Despite two extensions of time to file an opposition and a warning that failure to file an opposition or a statement of no opposition may result in a recommendation that this action be dismissed, the time for filing an opposition has passed and movant has neither filed an opposition nor otherwise responded to the court's order. In light of the above, the undersigned will recommend that this action be dismissed. See Fed. R. Civ. P. 41(b); Rule 12, Rules Governing § 2255 Cases; L.R. 110.
Accordingly, it is RECOMMENDED that:
1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), based on movant's failure to prosecute the action and to comply with court orders and Local Rules; and
2. Respondent's motion to dismiss, Dckt. No. 49, be denied as moot; and
3. The Clerk be directed to close the companion civil case, No. Civ. S-10-2637 JAM EFB.
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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