Hernandez v. Bennett

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 JENARO D. HERNANDEZ, Case No. 2:24-cv-00982-JHC-TLF 7 Petitioner, v. REPORT AND 8 RECOMMENDATION JASON BENNETT, 9 Noted for September 20, 2024 Respondent. — 10 — 11 The District Court has referred this action to United States Magistrate Judge 12 Theresa L. Fricke. On July 2, 2024, petitioner filed a motion to proceed in forma 13 pauperis (IFP) and a proposed habeas corpus petition nominally under 28 U.S.C. § 14 2241. Dkts. 1, 1-1, 1-2. Petitioner also filed several proposed motions in conjunction 15 with the petition: a “proposed motion requesting discovery” (Dkt. 3), a “proposed request 16 for records pursuant to 28 U.S.C. 2250” (Dkt. 4), a “proposed motion for order 17 response” (Dkt. 5), and “a proposed motion requesting production of the record” (Dkt. 18 6). 19 After screening the petition pursuant to Rule 4 of the Rules Governing § 2254 20 cases, the Court concluded the petition was, in fact, seeking relief under 28 U.S.C. § 21 2254, and was unexhausted. Dkt. 7. The Court ordered petitioner to show cause why 22 the petition should not be dismissed for failure to exhaust state court remedies. Id. at 3 . 23 The Court warned petitioner if he failed to adequately respond to the Order, the Court 24 would recommend dismissal of this action. Id. 1 Petitioner has failed to respond and therefore failed to comply with the Court’s 2 Order. As petitioner has failed to respond to the Court’s Order and prosecute this case, 3 the Court recommends this case be DISMISSED without prejudice. The Court further 4 recommends that petitioner’s motion to proceed IFP (Dkt. 1), as well has his “proposed 5 motion requesting discovery” (Dkt. 3), “proposed request for records pursuant to 28 6 U.S.C. 2250” (Dkt. 4), “proposed motion for order response” (Dkt. 5), and “proposed 7 motion requesting production of the record” (Dkt. 6) be DENIED as moot. Based on the 8 foregoing, the Court also recommends a certificate of appealability be DENIED. 9 Pursuant to 28 U.S.C. § 636 (b)(1) and Fed. R. Civ. P. 72(b), the parties shall 10 have fourteen (14) days from service of this report to file written objections. See also 11 Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for 12 purposes of de novo review by the district judge, see 28 U.S.C. § 636 (b)(1)(C), and can 13 result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 14 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations 15 omitted). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the Clerk is 16 directed to set the matter for consideration on September 20, 2024, as noted in the 17 caption. — 18 — — 19 — Dated this 5th day of September, 2024. — 20 — — 21 — — 22 — A — 23 — Theresa L. Fricke United States Magistrate Judge — 24 —