Opinion
1:20-cv-01738-HBK (HC)
11-29-2022
OMAR CABRERA, Petitioner, v. RON GODWIN, PEOPLE OF THE STATE OF CALIFORNIA, Respondents.
ORDER TO SHOW CAUSE WHY RESPONDENT'S MOTION TO DISMISS SHOULD NOT BE GRANTED (DOC. NOS. 15)
This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022).
HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE
Petitioner Omar Cabrera, a state prisoner proceeding with counsel, has pending an petition for writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1, “Petition”).
On November 12, 2021, Respondent filed a motion to dismiss the amended petition because ground two is unexhausted and ground six does not raise a federal question. (Doc. No. 15). As of the date of this order, Petitioner has not filed a response to the motion, nor requested an extension of time to respond, and the time for doing so has long expired. (See Doc. No. 12 at ¶ 5, advising Petitioner that he has twenty-one (21) days to file a response if Respondent files motion to dismiss). Petitioner shall show cause why his Petition should not be dismissed as a mixed petition because it contains an unexhausted ground for relief (claim two). The Court also orders Petitioner to show cause why ground six should not be dismissed for failure to raise a federal question.
Accordingly it is ORDERED:
1. Within twenty-one (21) days from the date of this Order, Petitioner must SHOW
CAUSE why Respondent's Motion to Dismiss should not be granted, with particular attention to why (1) the Petition should not be dismissed as a mixed petition because it contains an unexhausted ground for relief (claim two), and (2) ground six should not be dismissed for failure to state a federal question.
2. In the alternative, Petition may file a notice to voluntarily dismiss claims two and six or file an amended petition deleting these two grounds. Respondent will be directed to respond to remaining exhausted and cognizable claims in the Petition no later than thirty (30) days after Petitioner's response to this Order.
3. Petitioner is forewarned that failure to follow this order will result in a recommendation for dismissal of the petition as a mixed petition and/or for failure to prosecute or comply with a court order pursuant to Federal Rule of Civil Procedure 41(b).