UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
June 21, 2012
ANDREW NELSON WARREN,
TIM A. VARGAS,
The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable R. Gary Klausner, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
On May 8, 2012, this Court received from United States District Court for the Southern District of California an "Order Transferring Action to United States District Court for Central District of California, Western Division." Accompanying the Southern District's Order was a "Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 by a Person in State Custody."
On May 11, 2012, the Court filed an "Order Dismissing Habeas Petition with Leave to Amend, etc." The Order required that Petitioner file a First Amended Petition within thirty days of the date of the Order. The Order cautioned Petitioner that "[f]ailure to file a timely First Amended Petition may result in the dismissal of this action." Nevertheless, Petitioner failed to file a First Amended Petition within the allotted time.
The action should be dismissed without prejudice for failure to prosecute. Petitioner failed to file a timely First Amended Petition, despite a Court Order that he do so. The Court has inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute. Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962); see Fed. R. Civ. P. 41(b).
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered dismissing the action without prejudice.
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.
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