Perry

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AARON MONTGOMERY, No. 2:15-cv-1220 KJM AC P 12 Petitioner, 13 v. ORDER and FINDINGS AND

RECOMMENDATIONS

14 S.PERRY, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2245. For the reasons set forth below, the undersigned 19 recommends that the district court dismiss this action without prejudice for failure to prosecute. 20 I. Background 21 Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1. 22 Petitioner was convicted by a jury of sexual intercourse by force, oral copulation by force, and 23 genital penetration with a foreign object by force. See id. at 2; see also People v. Aaron Boone 24 Montgomery, No. C067823, 2013 WL 6255704, at *1 (Cal. Ct. App. Dec. 4, 2013).1 Petitioner 25 alleges he appealed his state court case on the grounds that the judge failed to instruct the jury on 26 1 United States ex rel.…