Opinion
5:21-cv-00358-JWH-MAA
10-28-2021
Paul Murray Aydelott v. California Supreme Court
Present: The Honorable MARIA A. AUDERO, United States Magistrate Judge
CIVIL MINUTES - GENERAL
Proceedings (In Chambers): Second Order to Show Cause Why the Petition Should Not Be Dismissed for Failure to Prosecute
Background
On February 24, 2021, Petitioner Paul Murray Aydelott (“Petitioner”), acting pro se, filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of California (“Petition”). (Pet., ECF No. 1.) The claims in the Petition are not clear (see id.), although Petitioner references California Proposition 47 (id. at 7). On February 25, 2021, the United States District Court for the Eastern District of California transferred the Petition to this Court. (Transfer Or., ECF No. 2.)
Pinpoint citations in this Order refer to the page numbers appearing in the ECF-generated headers of the cited documents.
On March 3, 2021, the Court issued an Order identifying certain procedural defects with the Petition: (1) Petitioner failed to use Form CV-69, the standard form for 28 U.S.C. § 2254 (“Section 2254”) petitions filed in this District, which prevented the Court from being able to ascertain Petitioner's claims and to determine whether those claims are timely and fully exhausted; (2) Petitioner did not name the proper Respondent for a Section 2254 proceeding; and (3) Petitioner did not pay the $5 filing fee or submit an application for leave to proceed in forma pauperis (“March 3 Order”). (Mar. 3, 2021 Or., ECF No. 5.)
On March 11, 2021, the Court received and filed Petitioner's Response to the March 3 Order. (Response, ECF No. 6.) In this Response, Petitioner stated that he was in quarantine and thus did not have access to the prison law library or other resources. (Id. at 1.) Petitioner named Warden Fisher as the warden of his institution of confinement, Valley State Prison. (Id.) Petitioner further stated that his mother, Joan Murray, would pay the $5 filing fee on his behalf. (Id.) On March 30, 2021, the Court received the $5 filing fee. (See ECF No. 7.)
On April 5, 2021, the Court issued an Order acknowledging that Petitioner had resolved two of the procedural issues identified in the March 3 Order by identifying Warden Fisher as a Respondent and paying the $5 filing fee (“April 5 Order”). (Apr. 5, 2021 Or., ECF No. 8, at 2.) The Court further ordered Petitioner to file an amended petition using the required Form CV-69 by May 3, 2021. (Id. at 2, 3.)
On April 29, 2021, the Court received and filed Petitioner's First Amended Petition (“FAP”), which appears on Form CV-69. (FAP, ECF No. 11.)
On May 19, 2021, the Court issued an Order finding that Petitioner's FAP is nearly unintelligible, the legal claims and the relief sought are unclear, and the FAP appears to be subject to summary dismissal as frivolous (“May 19 Order”). (May 19, 2021 Order, ECF No. 12.) Out of consideration for Petitioner's pro se status, the Court afforded Petitioner an opportunity to respond. (Id. at 3.) Petitioner's response was due no later than June 18, 2021. (Id.)
On July 28, 2021, in the absence of any correspondence from Petitioner, the Court issued an Order to Show Cause why the Petition should not be dismissed for failure to prosecute and to comply with Court orders (“July 28 OSC”). (July 28, 2021 OSC, ECF No. 14.) Petitioner's response to the July 28 OSC initially was due no later than August 27, 2021. (Id. at 2.) On September 3, 2021, the Court granted Petitioner's motion for an extension of time in which to respond until September 27, 2021. (ECF No. 17.)
On September 8, 2021, the Court received and filed Petitioner's request for appointment of counsel. (ECF No. 18.) On September 14, 2021, the Court denied appointment of counsel without prejudice. (ECF No. 19.)
Discussion
To date, Petitioner has not responded to the May 19 Order or July 28 OSC as required. However, out of consideration of Petitioner's pro se status, the Court will afford Petitioner an additional opportunity to respond. Accordingly, Petitioner is hereby ORDERED TO SHOW CAUSE by no later than November 29, 2021 why the Court should not recommend that the case be dismissed for lack of prosecution and failure to comply with court orders. See Fed. R. Civ. P. 41(b); C.D. Cal. L.R. 41-1, 41-6. Alternatively, Petitioner may voluntarily dismiss this action without prejudice pursuant to Federal Rule of Civil Procedure 41(a)(1). The Clerk is directed to attach Form CV-09 (Notice of Dismissal Pursuant to Federal Rules of Civil Procedure 41(a) or (c)) to this Order to Show Cause.
Failure to comply with this order by November 29, 2021 will result in a recommendation that this action be dismissed for failure to prosecute and for failure to comply with court orders pursuant to Federal Rule of Civil Procedure 41(b).
It is so ordered.