(HC) Love v. Covello

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA DANTE LOVE, No. 2:20-cv-0007 KJM AC P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS PATRICK COVELLO, 15 Respondent.

17 Petitioner is a state prisoner proceeding pro se with a habeas corpus petition filed pursuant to 28 U.S.C. § 2254. On May 28, 2020, respondent filed a motion to dismiss the petition. ECF No. 14. By order filed July 15, 2020, after respondent re-served the motion, petitioner was ordered to file a response within thirty days. ECF No. 16. Instead of filing a response to the motion to dismiss, petitioner filed a motion for counsel and for an evidentiary hearing on equitable tolling. ECF No. 18. The motion was denied, and petitioner was advised that if he wanted to argue that he was entitled to equitable tolling of the statute of limitations, he would have to file an opposition to the motion to dismiss that included specific facts in support of equitable tolling. ECF No. 19 at 2. Petitioner was given an additional twenty-one days to file an opposition or statement of non-opposition to the motion to dismiss, and was informed that failure to file an opposition would result in a recommendation that this action be dismissed without prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). Id. The || twenty-one-day period has now expired, and petitioner has not filed an opposition to the motion | or otherwise responded to the court’s order.

3 For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be | dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b).

5 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)(). 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).

13 | DATED: January 19, 2021 ~ 14 Chttien— Clare ALLISON CLAIRE 15 UNITED STATES MAGISTRATE JUDGE