Opinion
No. 2:10-cr-326-MCE-EFB
2013-09-16
UNITED STATES OF AMERICA, Respondent, v. RAUL OROZCO-VALERIO, Movant.
FINDINGS AND RECOMMENDATIONS
Movant, a federal prisoner proceeding without counsel, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. On May 6, 2013, respondent file a motion to dismiss the § 2255 motion on the grounds that movant waived his right to collaterally attack his sentence, the motion is barred by the statute of limitations, and that the motion is moot.
It appears that movant may have been removed from the United States.
On June 6, 2013, the court reminded movant of his obligation to file an opposition or statement of no opposition to respondent's motion. That order further admonished movant that failure to do so would result in a recommendation his § 2255 motion be dismissed. The time for filing an opposition has passed and movant has neither filed an opposition nor otherwise responded to the court's order.
Although it appears from the file that movant's copy of the order was returned, movant was properly served. It is the party's responsibility to keep the court apprised of a current address at all times. Pursuant to Local Rule 182(f), service of documents at the record address of the party is fully effective.
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Accordingly, the undersigned recommends that this action be dismissed. See Fed. R. Civ. P. 41(b); Rule 12, Rules Governing § 2255 Cases; L.R. 110.
Accordingly, it is RECOMMENDED that:
1. This action be dismissed pursuant to Federal Rule of Civil Procedure 41(b), based on movant's failure to prosecute the action and to comply with court orders and Local Rules;
2. Respondent's motion to dismiss, ECF No. 25, be denied as moot; and
3. The Clerk be directed to close the companion civil case, No. 2:12-cv-354-MCE-EFB.
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." 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).
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EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE