Opinion
No. 3:14-CV-2742-B (BH)
09-19-2014
ANTONIO HERNANDEZ PADILLA, ID # 1009251, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
Referred to U.S. Magistrate Judge
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
Pursuant to Special Order 3-251, this case has been automatically referred for findings, conclusions, and recommendation. Based on the relevant filings and applicable law, the case should be dismissed without prejudice for failure to prosecute or follow orders of the court.
I. BACKGROUND
Antonio Hernandez Padilla (Petitioner), an inmate currently incarcerated in the Texas Department of Criminal Justice, filed a petition for habeas corpus relief under 28 U.S.C. § 2254 that was received on July 31, 2014. (See doc. 3.) On August 4, 2014, the Court issued a Notice of Deficiency and Order ("NOD") notifying him that he had failed to either pay the applicable $5.00 filing fee or submit a motion to proceed in forma pauperis. (See doc. 5.) He was ordered to submit an IFP motion with the required certificate of inmate trust account ("CTA") or pay the filing fee within thirty days, and warned that failure to do so could result in dismissal of his case. Id. More than thirty days from the date of that order have passed, but Petitioner has not paid the filing fee, submitted an in forma pauperis application with a CTA, or filed anything else in this case.
II. INVOLUNTARY DISMISSAL
Rule 41(b) of the Federal Rules of Civil Procedure permits a court to dismiss sua sponte an action for failure to prosecute or follow orders of the court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). This authority flows from a court's inherent power to control its docket, prevent undue delays in the disposition of pending cases, and avoid congested court calendars. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962). Petitioner has failed to comply with the order that he pay the fee or submit the required IFP application and CTA within thirty days. Nor has he filed anything else in the case. This case should be dismissed without prejudice for failure to prosecute or follow orders of the court, subject to the application of the federal statute of limitations or any other federal procedural bar that may apply.
A one-year statute of limitations is applicable to the filing of non-capital § 2254 habeas corpus petitions in federal court. See 28 U.S.C.A. § 2244(d)(1-4)(West Supp. 2006). The statute of limitations is tolled, however, while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C.A. § 2244(d)(2)(West Supp. 2006).
III. RECOMMENDATION
This case should be dismissed without prejudice under Fed. R. Civ. P. 41(b) for failure to prosecute or follow orders of the court, subject to the application of the federal statute of limitations or any other federal procedural bar that may apply, unless Petitioner pays the filing fee or submits an IFP motion with CTA within the time for objection to this recommendation, or some other time set by the Court.
SIGNED this 19th day of September, 2014.
/s/_________
TRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of these findings, conclusions and recommendation shall be served on all parties in the manner provided by law. Any party who objects to any part of these findings, conclusions and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's findings, conclusions and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Servs. Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
/s/_________
TRMA CARRILLO RAMIREZ
UNITED STATES MAGISTRATE JUDGE