Opinion
Case No. 3:10-CV-767-J-12JRK
10-05-2011
STEVEN LEE SMITH, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, et al., Respondents.
ORDER OF DISMISSAL WITHOUT PREJUDICE
On April 21, 2011, the Court ordered Petitioner to file his reply within ninety days. Petitioner has not filed a reply.
On September 9, 2011, the Court entered an Order to Show Cause, directing Petitioner to show cause within twenty days why this case should not be dismissed for failure to prosecute and for failure to comply with the Court's order. Further, the Court notified Petitioner that failure to show satisfactory cause within twenty days of the order would result in the dismissal of this action without further notice. As of the date of this Order, there has been no response from Petitioner.
Therefore, it is now
ORDERED AND ADJUDGED:
1. This case is DISMISSED without prejudice.
2. The Clerk of the Court shall enter judgment dismissing this case without prejudice.
3. The Clerk of the Court shall close this case.
This dismissal without prejudice does not excuse Petitioner from the one-year period of limitation for raising a habeas corpus petition in the federal courts. See 28 U.S.C. § 2244(d). Petitioner should note that the one-year period of limitation is tolled during the time in which a properly filed application for state post-conviction relief is pending, see Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (defining when an application is "properly filed" under 28 U.S.C. § 2244(d)(2)); however, the time in which a federal habeas petition is pending does not toll the one-year limitation period. See Duncan v. Walker. 533 U.S. 167 (2001) (holding that an application for federal habeas corpus review does not toll the one-year limitation period under § 2244(d)(2)).
DONE AND ORDERED at Jacksonville, Florida, this 5th day of October, 2011.
________________________
UNITED STATES DISTRICT JUDGE
sa 10/3
C :
Steven Lee Smith
Ass't A.G. (Parrish)