Opinion
No. 2:07-cr-0146 JAM KJN P (TEMP)
11-23-2015
UNITED STATES OF AMERICA, Respondent, v. DUANE DEVERY DIXON, Movant.
FINDINGS & RECOMMENDATIONS
Movant is a federal prisoner, proceeding without counsel, with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. On November 22, 2013, respondent filed a motion to dismiss movant's § 2255 motion. Movant did not file an opposition to that motion. Accordingly, on February 12, 2014, this court issued an order advising movant that, pursuant to Local Rule 230(l), his failure to file a written opposition to the motion to dismiss, or a statement of no opposition, could be deemed a waiver of any opposition to the granting of the motion. (ECF No. 136.) In that same order, movant was ordered to file an opposition to the motion to dismiss within twenty-one days and show cause why the motion should not be granted. (Id.) Movant did not respond to the court's order. On September 18, 2014, respondent filed a "memorandum regarding order to show cause," requesting that this court deem movant's lack of response to the order to show cause a waiver of opposition to the granting of the motion to dismiss. (ECF No. 137.) Movant did not file a response to respondent's memorandum.
Local Rule 230(l) provides in part: "Failure of the responding party to file written opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion . . . ." Under the circumstances of this case, movant's failure to oppose respondent's motion to dismiss should be deemed a waiver of opposition to the granting of that motion.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Respondent's November 22, 2013, motion to dismiss be granted;
2. The motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 be dismissed; and
3. The Clerk of Court be directed to close the companion civil case 2:13-cv-1572-JAM-KJN.
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)(l). 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 response to the objections shall be filed and served 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: November 23, 2015
/s/_________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
Dixon146.dismiss