Opinion
2:20-cv-10105-ODW-MAA
03-01-2022
Raymond Tafolla, Jr. v. J. Pickett
Present: Honorable MARIA A. AUDERO, United States Magistrate Judge.
CIVIL MINUTES - GENERAL
Proceedings (In Chambers): Order Resending OSC regarding Petitioner's Opposition to Respondent's Motion to Dismiss (ECF No. 38)
On November 2, 2020, the Court received and filed Petitioner Raymond Tafolla, Jr.'s (“Petitioner”) pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“Section 2254”) (“Petition”). (Pet., ECF No. 1.) The Petition alleges two grounds for federal habeas corpus relief challenging a 1999 criminal judgment: (1) the trial court entered an unauthorized sentencing enhancement and (2) the trial court imposed restitution without assessing Petitioner's ability to pay. (Id. at 3; see also Petition Memorandum of Points & Authorities (“Petition MP&A”), ECF No. 2.)
Pinpoint citations of documents in this Order refer to the page numbers appearing in the ECF-generated headers.
On November 18, 2021, Respondent filed a Motion to Dismiss the Petition, arguing that Petitioner's claims are untimely and fail to present a cognizable basis for federal habeas relief, and further arguing that Ground One is unexhausted (“Motion to Dismiss”). (Mot. to Dismiss, ECF No. 36.) Respondent also filed several lodged documents (“LD”) in support of the Motion to Dismiss. (LDs, ECF No. 37-1-37-10.) Petitioner's Opposition to Respondent's Motion to Dismiss was due no later than thirty days after service of the Motion to Dismiss. (ECF No. 29 at 5.)
On January 21, 2022, the Court issued an Order to Show Cause regarding Petitioner's failure to file an Opposition, ordering Petitioner to respond by February 22, 2022 and cautioning Petitioner that his failure to file an Opposition could be construed as consent to the granting of the Motion to Dismiss and his failure to respond to the January 21 OSC could result in dismissal of the lawsuit for failure to prosecute (“January 21 OSC”). (Jan. 21, 2022 OSC, ECF No. 38.)
To date, Petitioner has not responded to the January 21 OSC. However, on January 31, 2022, the Court received and filed Petitioner's Notice of Change of Address informing the Court that Petitioner has been transferred to Mule Creek State Prison. (ECF No. 39.)
Although the Court's January 21 OSC has not been returned to sender, in an abundance of caution, the Court will resend the January 21 OSC to Petitioner's new address. Accordingly, the Clerk is hereby directed to attach a copy of the January 21 OSC to this Order. It is further ORDERED that Petitioner's deadline to respond to the January 21 OSC is EXTENDED to March 30, 2022.
Petitioner is advised that failure to file an Opposition to the Motion by March 30, 2022 may be construed as consent to the granting of the Motion and may result in a recommendation that the lawsuit be dismissed. See C.D. Cal. L.R. 7-12. Petitioner also is advised that failure to comply with this Order by March 30, 2022 may result in a recommendation that the lawsuit be dismissed for failure to prosecute and/or failure to comply with Court orders. See C.D. Cal. L.R. 41-1.
It is so ordered.