Filed: Mar. 04, 2020
Latest Update: Mar. 04, 2020
Summary: ORDER KENDALL J. NEWMAN , Magistrate Judge . Petitioner is a state prisoner, proceeding pro se, with an application for writ of habeas corpus pursuant to 28 U.S.C. 2254. On January 27, 2020, respondent filed a motion to dismiss this action because it was filed beyond the one-year statute of limitations. 28 U.S.C. 2244(d). Petitioner has not opposed the motion. Local Rule 230(1) provides in part: "Failure of the responding party to file written opposition or to file a statement of no o
Summary: ORDER KENDALL J. NEWMAN , Magistrate Judge . Petitioner is a state prisoner, proceeding pro se, with an application for writ of habeas corpus pursuant to 28 U.S.C. 2254. On January 27, 2020, respondent filed a motion to dismiss this action because it was filed beyond the one-year statute of limitations. 28 U.S.C. 2244(d). Petitioner has not opposed the motion. Local Rule 230(1) provides in part: "Failure of the responding party to file written opposition or to file a statement of no op..
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ORDER
KENDALL J. NEWMAN, Magistrate Judge.
Petitioner is a state prisoner, proceeding pro se, with an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On January 27, 2020, respondent filed a motion to dismiss this action because it was filed beyond the one-year statute of limitations. 28 U.S.C. § 2244(d). Petitioner has not opposed the motion.
Local Rule 230(1) provides in part: "Failure of the responding party to file written opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion . . . ." Id. Local Rule 110 provides that failure to comply with the Local Rules "may be grounds for imposition of any and all sanctions authorized by statute or Rule or within the inherent power of the Court." Id. Finally, Rule 41(b) of the Federal Rules of Civil Procedure provides:
Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits.
Fed. R. Civ. P. 41(b). Nevertheless, petitioner is hereby provided another opportunity in which to oppose the motion to dismiss.
Here, petitioner challenges his 2012 conviction on three counts of robbery, two counts of assault with a firearm, one count of attempted murder, one count of burglary, and one count of false imprisonment. Petitioner was sentenced to a state prison term of 83 years-to-life.
Accordingly, IT IS HEREBY ORDERED that, within thirty days from the date of this order, petitioner shall show cause why his failure to oppose respondent's motion to dismiss should not be deemed a waiver of any opposition to the granting of the motion, and he shall file an opposition to the motion to dismiss. Petitioner is cautioned that failure to respond to the instant order, or to file an opposition to the pending motion to dismiss, will result in a recommendation that the petition be dismissed.
