Opinion
CV 20-5070-SVW (KS)
06-07-2021
Antoine Denell Jordan v. M. Atchley
Present: The Honorable: Karen L. Stevenson, United States Magistrate Judge
CIVIL MINUTES - GENERAL
On June 8, 2020, Petitioner, a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the “Petition”). (Dkt. No. 1.) On April 14, 2021, Respondent filed a Motion to Dismiss (the “Motion”) on the grounds that the claims presented in the Petition are untimely (Dkt. No. 22) and lodged relevant state court records (Dkt. No. 23). Pursuant to the Court's January 4, 2021 Order, Petitioner's Opposition to that Motion was due within 30 days of the service of the Motion-that is, no later than May 14, 2021. (See Dkt. No. 15 at 3.)
Three weeks have now passed since the date on which Petitioner's opposition was due, and Petitioner has not filed a response to the Motion to Dismiss. Local Rule 7-12 states that a party's failure to file a required document such as an opposition to a motion “may be deemed consent to the granting [ ] of the motion.” Further, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, an action may be subject to involuntary dismissal if a Petitioner “fails to prosecute or to comply with these rules or a court order.” Thus, the Court could properly recommend dismissal of the action for Petitioner's failure to oppose the Motion and timely comply with the Court's orders.
However, in the interests of justice, Petitioner is ORDERED TO SHOW CAUSE on or before June 28, 2021 why the action should not be dismissed under Local Rule 7-12 and Rule 41(b) of the Federal Rules of Civil Procedure. In order to discharge this Order and proceed with this action, Petitioner must file by the June 28, 2021 deadline one of the following: (1) a complete and detailed opposition (in a manner fully complying with the Local Rules) to the Motion to Dismiss; or (2) a request for an extension of time to file the Opposition accompanied by a sworn declaration (not to exceed 3 pages) establishing good cause for Petitioner's failure to timely respond to the Motion to Dismiss.
Alternatively, Petitioner may discharge this Order and dismiss this case by filing a signed document entitled a “Notice of Voluntary Dismissal” requesting the voluntary dismissal of the action without prejudice pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure.
Petitioner is cautioned that his failure to timely comply with this order will lead to a recommendation of dismissal based on Local Rule 7-12 and Rule 41 of the Federal Rules of Civil Procedure.