Opinion
No. 2:19-cv-1131 MCE KJN P
05-28-2020
MARQUIS DOMINIQUE MOORE, Petitioner, v. STU SHERMAN, Respondents.
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner, proceeding pro se, with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 27, 2020, respondent filed a motion to dismiss this action because it was filed beyond the one-year statute of limitations. 28 U.S.C. § 2244(d). Petitioner did not oppose the motion. By order filed March 5, 2020, petitioner was ordered to show cause, within thirty days, why this action should not be dismissed based on his failure to file an opposition. On April 6, 2020, petitioner filed "objections," but on April 16, 2020, the undersigned found that petitioner's objections failed to address respondent's motion to dismiss, instead arguing the merits of his petition. Petitioner was granted an additional thirty days in which to oppose respondent's motion, and reminded that such failure would be deemed a waiver of any opposition to the granting of the motion. The thirty-day period has now expired, and petitioner has not shown cause as required under the March 5, 2020 order, filed an opposition to respondent's motion, or otherwise responded to the court's order.
Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice. See Local Rule 110; Fed. R. Civ. P. 41(b).
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)(1). Within thirty 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." 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). Where, as here, a habeas petition is dismissed on procedural grounds, a certificate of appealability "should issue . . . if the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim for the denial of a constitutional right, and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Petrocelli v. Angelone, 248 F.3d 877, 883-84 (9th Cir. 2001) (quoting Slack v. McDaniel, 529 U.S. 473, 478 (2000)). Any response to the objections shall be served and filed within fourteen 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). Dated: May 28, 2020
/s/_________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE /moor1131.157