Opinion
No. 2:02-CV-0164.
July 16, 2004
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS
On June 10, 2002, petitioner RICHARD DAVID BACA filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging his 1987 conviction for burglary of a habitation out of the 47th Judicial District Court of Randall County, Texas. On December 16, 2002, respondent filed an Answer with Brief in Support and therein alleged petitioner's habeas application should be dismissed as time barred.
On December 27, 2002, the undersigned United States Magistrate Judge issued an Order to Reply in which petitioner was ordered to file a reply to respondent's Answer. Petitioner did not file such reply and on June 16, 2004, the undersigned entered an Order to Show Cause instructing petitioner to answer why the case should not be dismissed for failure to prosecute, failure to follow a Court Order, and failure to file his habeas application within the statutory time period. Petitioner was advised that his failure to file a timely response with the Court would result in a recommendation that this cause be dismissed. The Order was mailed to petitioner's last known address at 307 North Louisiana Street in Amarillo, Texas. The Order has not been returned as undeliverable to the District Court clerk's office.
Petitioner has failed to file responsive pleadings in direct disregard of the Court's Order to Show Cause. Further, petitioner has failed to communicate with the Court since December 31, 2002, when he submitted correspondence to the Clerk advising of his change of address. Petitioner has failed to keep in contact with the Court in any manner since that date. It is the opinion of the undersigned that petitioner has neglected his case to such an extent that it warrants dismissal.
RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Petition for a Writ of Habeas Corpus filed by petitioner RICHARD DAVID BACA be DISMISSED for want of prosecution.
INSTRUCTIONS FOR SERVICE and NOTIFICATION OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by certified mail, return receipt requested.
Petitioner may object to this Report and Recommendation within fourteen (14) days after its date of filing. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 5(b), 6(e). Any such objections shall be in the form of a written pleading entitled "Objections to the Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.