Opinion
2:24-cv-04852 PA (ADS)
07-22-2024
Anton M. Kubica v. Leanna Lundy
Present: The Honorable Autumn D. Spaeth, United States Magistrate Judge
CIVIL MINUTES - GENERAL
Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE REGARDING DISMISSAL
On June 10, 2024, Petitioner Anton M. Kubica (“Petitioner”), by and through counsel of record, Melvin S. Betnun, filed a Notice of Motion and Motion to Vacate, Set Aside or Correct Sentence by a Person in Custody attaching a Verified Petition for Writ of Habeas Corpus (the “Petition”). (Dkt. Nos. 1, 1-1.) On July 2, 2024, the Court issued an Order Regarding Screening of Petition (“Screening Order”) explaining that the Petition did not have the required signatures and, accordingly, was subject to dismissal. (Dkt. No. 3.) See 28 U.S.C. § 2242 (“Application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf.”); Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (“The district court may refuse to file, or may dismiss, an unsigned and unverified petition.”). The Court ordered Petitioner to file an amended petition by July 12, 2024, that accurately reflects the attorney of record in the caption and includes the required signatures. (Id.) The Court further noted that any request for an abeyance must be brought in a motion for a stay and abeyance. (Id.)
On July 12, 2024, Petitioner filed a “First Amended Petition Request for an Abeyance” in which counsel merely asserts a request for a stay and abeyance because Petitioner has a state habeas petition pending in California Superior Court. (Dkt. No. 4.) The Court understands the filing to be a Motion for Stay and Abeyance, not a First Amended Petition. The Petition, therefore, remains unsigned and unverified.
Petitioner is ORDERED TO SHOW CAUSE in writing why this action should not be dismissed for failure to prosecute and/or follow court orders by no later than July 29, 2024. Petitioner may respond by filing a signed Petition.
Petitioner is expressly warned that his failure to timely respond to this Order may result in the Petition being dismissed for the reasons stated above, and/or for failure to obey court orders and failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
This order is nondispositive. However, if Petitioner believes this order erroneously disposes of any of his claims or precludes any relief sought, he may file objections with the district judge within 20 days of the date of the order. See Bastidas v. Chappell, 791 F.3d 1155, 1162 (9th Cir. 2015).
IT IS SO ORDERED.