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Powell v. People

United States District Court, Eastern District of California
Oct 27, 2022
2:21-cv-02263-DAD-EFB (HC) (E.D. Cal. Oct. 27, 2022)

Opinion

2:21-cv-02263-DAD-EFB (HC)

10-27-2022

JEFFREY DEWAYNE POWELL, Petitioner, v. PEOPLE OF THE STATE OF CALIFORNIA, Respondent.


FINDINGS AND RECOMMENDATIONS

EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 16, 2022, the court granted respondent's motion to dismiss the petition for containing unexhausted claims. ECF No. 21. The court granted petitioner 21 days to file an amended petition containing only exhausted claims. Id. On September 9, 2022, petitioner notified the court that he would like to proceed with his exhausted claims. ECF No. 23. He did not, however, file an amended petition containing only the exhausted claims as directed by the court. Accordingly, the court granted petitioner another 21 days in which to file the amended petition. ECF No. 24. The court also warned petitioner that failure to comply could result in a recommendation that this action be dismissed. Id.

The time for acting has passed and petitioner has not filed an amended petition or otherwise responded to the court's most recent order. Thus, it appears that petitioner is unable or unwilling to file an amended petition as ordered. He has failed to prosecute this action.

Accordingly, it is hereby RECOMMENDED that this action be DISMISSED without prejudice.

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 fourteen 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 fourteen days after service of the objections. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 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, 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).


Summaries of

Powell v. People

United States District Court, Eastern District of California
Oct 27, 2022
2:21-cv-02263-DAD-EFB (HC) (E.D. Cal. Oct. 27, 2022)
Case details for

Powell v. People

Case Details

Full title:JEFFREY DEWAYNE POWELL, Petitioner, v. PEOPLE OF THE STATE OF CALIFORNIA…

Court:United States District Court, Eastern District of California

Date published: Oct 27, 2022

Citations

2:21-cv-02263-DAD-EFB (HC) (E.D. Cal. Oct. 27, 2022)