(HC) LaBarr v. The People of the State of California

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA PHILLIP EUGENE LABARR, No. 1:24-cv-01262-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION 14 TO DISMISS PETITION PEOPLE OF THE STATE OF CALIFORNIA, [21-DAY DEADLINE] 16 Respondent.

18 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He filed the instant petition on September 23, 2024. After conducting a preliminary review, the Court determined that the petition failed to state a claim for relief, failed to show exhaustion of state remedies, and failed to name a proper respondent. Therefore, on October 18, 2024, the Court issued an order dismissing the petition and granting Petitioner leave to file an amended petition. (Doc. 8.) Petitioner was granted thirty days to do so. Over thirty days have now passed, and Petitioner has failed to file an amended petition in accordance with the Court’s order. Therefore, the Court will recommend the petition be dismissed.

27 ORDER 28 The Clerk of Court is directed to assign a district judge to the case.

1 RECOMMENDATION 2 For the foregoing reasons, the Court hereby RECOMMENDS that the petition be dismissed for failure to state a claim for relief, failure to exhaust state remedies, and failure to name a proper respondent.

5 This Findings and Recommendation is submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within twenty-one (21) days after being served with a copy of this Findings and Recommendation, Petitioner may file written objections with the Court. Id. The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendation” and shall not exceed fifteen (15) pages, except by leave of court with good cause shown. The Court will not consider exhibits attached to the Objections. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by the District Judge when reviewing these Findings and Recommendations pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014). This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.

IT IS SO ORDERED.

21 Dated: November 27, 2024 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE