Opinion
8:21-01624 MCS (ADS)
02-23-2022
Jose G. Villalta v. B. Cates, Warden
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 Jose G. Villalta's Petition for Writ of Habeas Corpus by a Person in State Custody. (Dkt. No. 1.) On January 6, 2022, the Court issued an Order Regarding Screening of Petition because Petitioner failed to pay the requiring filing fee or submit a completed IFP request and because the Petition appears to be unexhausted and untimely. (Dkt. No. 5.) The Court ordered Petitioner to pay the filing fee or file an IFP request, explain whether he presented his claim to the state courts, and demonstrate whether tolling applies by February 7, 2022. (Id., p. 5.) The Court also provided Petitioner with options for how to proceed. (Id., pp. 5-6.) Petitioner has not since filed a response or otherwise communicated with the Court.
By no later than March 9, 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 January 6, 2022 Order. (Dkt. No. 5.)
As a reminder, Petitioner may choose to proceed with the Petition in its current form, despite the infirmities identified in the January 6, 2022 Order. (Id.) Petitioner is expressly cautioned that the Petition appears unexhausted on its face 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 January 6, 2022 Order, for failure to prosecute and/or obey court orders pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.