Opinion
No. CIV S-07-0668 RRB EFB P.
October 9, 2007
ORDER
Petitioner is a prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. He challenges his June 14, 2004, convictions of attempted murder, corporal injury upon a cohabitant and assault with a deadly weapon.
On June 28, 2007, respondents moved to dismiss upon the ground that the petition is mixed, i.e., it contains exhausted and unexhausted claims. On August 14, 2007, the court gave petitioner 30 days to file an opposition or a statement of no opposition, and warned petitioner that his failure to do so would result in a recommendation that this action be dismissed without prejudice. Although the 30 days have passed and plaintiff has not filed an opposition or a statement of no opposition, the court notes that on August 31, 2007, he notified the court of his new address and on September 24, 2007, he inquired into the status of this case. Given petitioner's transfer from one facility to another, it is not clear that he received the court's August 14, 2007, order. Accordingly, the court finds that petitioner should be given one more opportunity to file either an opposition or a notice of no opposition to respondent's motion to dismiss.
It therefore is ORDERED that petitioner has 30 days from the date this order is served to file either an opposition or a notice of no opposition in response to the June 28, 2007, motion to dismiss. Failure to comply with this order will result in a recommendation that this action be dismissed without prejudice for petitioner's failure to prosecute. The Clerk of the Court is directed to serve on plaintiff a copy of this court's August 14, 2007, order with the instant order.