Opinion
Case No. 3:12-cv-00131-MMD-WGC
04-26-2013
LEO WALLS, Petitioner, v. ROBERT LeGRAND, et al., Respondent.
ORDER
This is a habeas corpus petition pursuant to 28 U.S.C. § 2254 in which petitioner, a state prisoner, is proceeding pro se. Before the Court is respondents' motion to dismiss (dkt. no. 10), which was filed on September 11, 2012. Petitioner received notice from the Court of the requirements of Klingele v. Eikenberry and Rand v. Rowland on September 12, 2012 (dkt. no. 13). On October 5, 2012, petitioner filed a motion for extension of time to oppose the motion to dismiss (dkt. no. 14). On October 17, 2012, the Court granted the motion and directed petitioner to file his opposition no later than November 26, 2012 (dkt. no. 15). That order was served on petitioner at his address of record. More than the allotted time has passed, and petitioner has not filed an opposition to the motion to dismiss nor responded to the Court's order in any way.
It appears that petitioner was released from Nevada Department of Corrections' custody in approximately September 2012, which may explain his failure to continue to litigate his petition by responding to the motion to dismiss (see dkt. no. 14).
In the motion to dismiss, respondents contend that the petition must be dismissed with prejudice as untimely (dkt. no. 10). See 28 U.S.C. § 2244(d). Respondents also argue that petitioner failed to exhaust available state remedies with respect to one of the two grounds. 28 U.S.C. § 2254(b)(1)(A). Pursuant to the provisions of Local Rule 7-2, petitioner's failure to respond to the motion is a concession on his part that the arguments are valid. Therefore, the motion to dismiss shall be granted.
The Court notes, without deciding, that the exhibits provided by respondents appear to demonstrate that the petition is indeed untimely.
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IT IS THEREFORE ORDERED that respondents' motion to dismiss the petition with prejudice (dkt. no. 10) is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly and close this case.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE