Opinion
2:21-CV-0475-KJM-DMC-P
10-11-2022
ROBERT HAVEN, Petitioner, v. DANIEL CUEVA, Respondent.
ORDER
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as provided by Eastern District of California local rules.
On February 15, 2022, the Magistrate Judge filed findings and recommendations, which were served on the parties and which contained notice that the parties may file objections within the time specified therein. The magistrate judge recommends granting respondent's motion to dismiss as unopposed. ECF No. 19. Timely objections to the findings and recommendations have been filed. ECF No. 20. Petitioner claims he did not receive a copy of the motion to dismiss and thus did not respond.
In light of petitioner's claim that he did not receive a copy of the pending motion, the court declines to grant the motion as unopposed. See E.D. Cal. L.R. 230(b) (“A failure to file a timely opposition may also be construed by the Court as a non-opposition to the motion.” (emphasis added)). This matter is referred again to the assigned Magistrate Judge for further proceedings to address petitioner's claim he did not receive the motion to dismiss, and ultimately the preparation of new findings and recommendations on the pending motion.
IT IS SO ORDERED.