Opinion
CASE NO. 3:20-cv-05054-RSL-DWC
02-11-2021
Antaeus Laurent Clark, Petitioner, v. Jeffrey A Uttecht, Respondent.
REPORTAND RECOMMENDATION NOTED FOR: MARCH 5, 2021
The District Court has referred this action filed under 28 U.S.C. § 2254 to United States Magistrate Judge David W. Christel. On January 19, 2020, Petitioner Antaeus Laurent Clark initiated this action challenging his state court conviction and sentence. See Dkt. 1, 3.
On June 24, 2020, in order for the Court to properly consider the statute of limitations as related to the grounds raised in the Amended Petition, the Court ordered the parties to file supplemental briefing. Dkt. 13. On July 28, 2020, Respondent filed his Supplemental Answer. Dkt. 16. On July 30, 2020, the Court granted Petitioner a 90-day extension to file his supplement until October 30, 2020. Dkt. 17.
Petitioner did not respond to the Court's Order and did not file his supplement. See Dkt. On November 12, 2020, the Court ordered Petitioner to show cause why the Petition should not be dismissed without prejudice for failure to prosecute. Dkt. 19. Petitioner was advised if he failed to respond to the Court's Order and file his supplement, the Court would recommend dismissal of this action without prejudice for failure to comply with a Court order. Dkt. 19.
On December 4, 2020, Petitioner filed a Response to the Court's Order stating due to current COVID-19 procedures, Petitioner's access to the law library was restricted. Dkt. 20. Petitioner also filed a Motion to Compel for Information (Show Cause) (Dkt. 21) and Motion for Vicarious Exhaustion of State Remedies (Dkt. 22). Petitioner did not file his supplement. See Dkt. In an abundance of caution, the Court interpreted Petitioner's Response as a Motion requesting additional time to file his supplement and respond to the Court's Order. Dkt. 24. The Court granted Petitioner another extension to file his supplement and respond to the Court's Order (Dkt. 19). Dkt. 24. Petitioner was again advised if he failed to file his supplement and respond the Court's Order on or before January 22, 2021, the Court would recommend dismissal of this action. Dkt. 24.
To date, despite multiple extensions and opportunities, Petitioner has failed to file his supplement and failed to respond to the Court's Orders. As Petitioner has failed to respond to the Court's Orders and prosecute this case, the Court recommends this case be dismissed without prejudice. Based on the foregoing, the Court recommends all other pending motions be denied as moot (Dkt. 9, 21, 22) and a certificate of appealability be denied.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on March 5, 2021, as noted in the caption.
Dated this 11th day of February, 2021.
/s/_________
David W. Christel
United States Magistrate Judge