Opinion
2:22-01285 MEMF (ADS)
12-02-2022
Carlos Mercado v. Birkholz
Present: The Honorable Autumn D. Spaeth, United States Magistrate Judge.
CIVIL MINUTES - GENERAL
Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE RE: DISMISSAL
Before the Court is Petitioner Carlos Mercado's Petition for Writ of Habeas Corpus by a Person in Federal Custody. (Dkt. No. 1.) On October 26, 2022, the Court issued an Order Regarding Screening of Petition because 28 U.S.C. § 2241 and the savings clause in 28 U.S.C. § 2255 do not appear to apply, Ground Three is vague and ambiguous, and the Petition appears to be untimely. (Dkt. No. 6.) The Court ordered Petitioner to file a written response to cure the above defects by November 16, 2022. (Id. at 6.) The Court also provided Petitioner with options for how to proceed. (Id.) Petitioner has not since filed a response or otherwise communicated with the Court.
By no later than December 16, 2022, Petitioner is ORDERED TO SHOW CAUSE in writing why this action should not be dismissed for failure to prosecute the Petition and follow court orders. Petitioner may respond to this Order by selecting one of the options set forth in the October 26, 2022 Order. (Id.)
As a reminder, Petitioner may choose to proceed with the Petition in its current form, despite the infirmities identified in the October 26, 2022 Order. (Id.) Petitioner is expressly cautioned that the Petition appears to have defects and therefore the Petition is subject to dismissal. If Petitioner chooses to proceed with the Petition, it will be viewed by the Court as the inability to cure the defects identified. As such, the Court will recommend dismissal of the Petition to the District Judge.
If Petitioner no longer wishes to pursue his claims, he may request a voluntary dismissal of this action pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court is directed to attach a Notice of Dismissal Form (CV-009) to this Order for Petitioner's convenience.
Petitioner is cautioned that failure to timely file a response will result in a recommendation that this action be dismissed for the reasons stated in the October 26, 2022 Order, for failure to prosecute and/or obey court orders pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.