United States District Court, E.D. California
August 18, 2014
CRISTO LOPEZ, Petitioner,
KEVIN CHAPPELL, Respondent.
FINDINGS AND RECOMMENDATIONS
GREGORY G. HOLLOWS, Magistrate Judge.
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On April 2, 2014, petitioner was ordered to show cause, within thirty days, why respondent's February 18, 2014 motion to dismiss should not be granted. At that time, petitioner was warned that failure to file an opposition would result in a recommendation that this action be dismissed. Petitioner filed a response indicating that he was in Administrative Segregation, and needed help with his legal work. The court construed these statements as a wish to respond to the motion to dismiss, and granted petitioner forty-five days to file an opposition. The order did advise petitioner that if he did not respond to the motion to dismiss, and the case was dismissed, it would be very difficult to refile at a later time. The court then set forth authority concerning the statute of limitations and various tolling principles. Finally, the order, filed April 29, 2014, warned petitioner that failure to file an opposition would result in a recommendation that the action be dismissed. (ECF No. 16.) Petitioner then filed a request for extension of time, which was granted on June 6, 2014, and petitioner was given sixty days in which to file his opposition. Petitioner was warned that no further extensions of time would be granted. The sixty day period has passed, and petitioner has not filed an opposition to the motion.
In addition, the court has reviewed the motion to dismiss based on untimeliness. The court finds that on the face of it, the motion has merit. Petitioner filed his petition more than nine months after the one year deadline had passed, and he is therefore barred from proceeding in this court. See ECF No. 12.
Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A certificate of appealability may issue only "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons set forth in these findings and recommendations, a substantial showing of the denial of a constitutional right has not been made in this case.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Respondent's motion to dismiss, filed February 18, 2014 (ECF No. 12), be granted; and
2. The District Court decline to issue a certificate of appealability.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) 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." Any reply to the objections shall be served and filed within seven (7) days after service of the objections. The parties are 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).