Opinion
2:21-cv-8417-JWH (MAR)
02-09-2022
Kevin Stewart v. The People of the State of California
Present: The Honorable: MARGO A. ROCCONI, UNITED STATES MAGISTRATE JUDGE
CIVIL MINUTES - GENERAL
Proceedings: (In Chambers) SECOND ORDER TO SHOW CAUSE RE: FAILURE TO PROSECUTE
On October 15, 2021, Petitioner Kevin Stewart (“Petitioner”), proceeding pro se, constructively filed the instant Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”) pursuant to 28 U.S.C. § 2254 (“section 2254”) challenging the state courts' denials of his requests for the record and/or the transcript of a ruling at a hearing. ECF Docket No. (“Dkt.”) 1 at 2. On November 5, 2021, this Court issued a Minute Order identifying deficiencies in the Petition, dismissing the Petition with leave to amend, and giving Petitioner until November 26, 2021, to file a First Amended Petition. Dkt. 3 at 1-2.
Under the “mailbox rule, ” when a pro se prisoner gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted).
On January 4, 2022, the Court issued an Order to Show Cause giving Plaintiff until January 25, 2022, to show why this action should not be dismissed for failure to prosecute. Dkt. 6. Plaintiff was warned that “failure to follow [the Court's] instructions may result in the case being dismissed.” Id. (emphasis in original). To date, Petitioner has failed to comply with the Court's Minute Order or otherwise correspond with the Court.
Accordingly, Petitioner shall file a First Amended Petition within fourteen (14) days of this Order, by February 23, 2022, or this action will be dismissed for failure to prosecute.
IT IS SO ORDERED.