United States District Court, E.D. California
FINDINGS AND RECOMMENDATION THAT THE COURT DISMISS
THE CASE FOR FAILURE TO PROSECUTE
K. Oberto UNITED STATES MAGISTRATE JUDGE
December 8, 2016, Petitioner Esteban Hernandez, a federal
prisoner proceeding with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241, moved for reconsideration
of the Court's order dismissing the petition for lack of
jurisdiction. On April 13, 2017, the Magistrate Judge issued
findings and recommendations that the Court deny the motion
findings and recommendations, which were served on Petitioner
by mail the same day, provided that Petitioner could file
objections within thirty days. On April 27, 2017, the copy of
an order mailed to Petitioner was returned to the Clerk
marked "undeliverable, not in custody."
Rule 183 provides:
A party appearing in propria persona shall keep the
Court and opposing parties advised as to his or her current
address. If mail directed to a plaintiff in propria
persona by the Clerk is returned by the U.S. Postal
Service, and if such Plaintiff fails to notify the Court and
opposing parties within sixty-three (63) days thereafter of a
current address, the Court may dismiss the action without
prejudice for failure to prosecute.
more than sixty-three (63) days have elapsed from the date of
the return of the order mailed to Petitioner, Petitioner has
failed to advise the Court of his current address or
contacted the Court in any other way. The Court has
discretion to impose any and all sanctions authorized by
statute or rule or within the inherent power of the Court,
including dismissing the motion, based on a petitioner's
failure to comply with a court rules. F.R.Civ.P. 11; Local R.
petitioner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his
petition, but may only appeal in certain circumstances.
Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003).
The controlling statute in determining whether to issue a
certificate of appealability is 28 U.S.C. § 2253, which
(a) In a habeas corpus proceeding or a proceeding under
section 2255 before a district judge, the final order shall
be subject to review, on appeal, by the court of appeals for
the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to
another district or place for commitment or trial a person
charged with a criminal offense against the United States, or
to test the validity of such person's detention pending
(c) (1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to
the court of appeals from-
(A) the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by a
State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph
(1) only if the applicant has made a substantial showing of