Filed: Jun. 19, 2012
Latest Update: Jun. 19, 2012
Summary: MEMORANDUM DECISION DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. 2254 FREDERICK F. MUMM, Magistrate Judge I. PROCEEDINGS Petitioner Anthony Clarke, previously a state prisoner in the custody of the California Department of Corrections, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 2254 ("Petition") on October 1, 2010. Petitioner and respondent consented to proceed before the undersigned United States Magistrate Judge purs
Summary: MEMORANDUM DECISION DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. 2254 FREDERICK F. MUMM, Magistrate Judge I. PROCEEDINGS Petitioner Anthony Clarke, previously a state prisoner in the custody of the California Department of Corrections, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 2254 ("Petition") on October 1, 2010. Petitioner and respondent consented to proceed before the undersigned United States Magistrate Judge pursu..
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MEMORANDUM DECISION DENYING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254
FREDERICK F. MUMM, Magistrate Judge
I. PROCEEDINGS
Petitioner Anthony Clarke, previously a state prisoner in the custody of the California Department of Corrections, filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition") on October 1, 2010. Petitioner and respondent consented to proceed before the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). On November 16, 2010, respondent filed a Return to the Petition. Petitioner did not file a Reply.
On or about June 27, 2011, petitioner constructively filed another Petition for Writ of Habeas Corpus by a Person in State Custody ("Second Petition").1 Respondent filed a motion to dismiss the Second Petition on October 12, 2011 based on the pendency of the Petition. Petitioner neither filed an opposition to the motion to dismiss nor requested an extension of time within which to do so.
On November 30, 2011, the Court issued a Report and Recommendation recommending that the Second Petition be dismissed without prejudice and that it be construed as a proposed amended petition in these proceedings. On April 10, 2012, the District Judge assigned to the Second Petition accepted the recommendation and dismissed the Second Petition without prejudice.
In the meantime, the Court prematurely ruled on the merits of the Petition, found it without merit, and entered judgment dismissing the Petition with prejudice. Upon discovering the prematurity of the ruling, the Court reopened these proceedings pending a determination of whether the Petition should be amended to include the claims contained in the Second Petition. Upon entry of the order dismissing the Second Petition, the Court issued a Minute Order setting the following briefing schedule:
Petitioner is granted 21 days from the date of this order [i.e., up to May 17, 2012] to file any briefs, declarations, or other evidence he wishes the Court to consider in ruling on the motion for leave to amend.
Respondent must file any opposition within 42 days of the date of this order.
Petitioner must file any reply to respondent's opposition within 10 days of receipt of respondent's opposition.
Having received nothing from petitioner, the Court issued an order on May 22, 2012 noting petitioner's failure to comply with the briefing schedule and stating, in part:
To the extent petitioner desires to pursue a motion to amend his petition, he is granted an extension of time to June 7, 2012 within which to demonstrate why the Court should allow the petition to be amended.
Petitioner is advised that his failure to file anything which attempts to make such a showing will be construed as a withdrawal by petitioner of any request to amend his petition.
The Court's May 22, 2012 order was returned to the Court as undeliverable on June 8, 2012. The notation on the envelope states that the "inmate [is] not at this institution."
II. DISMISSAL FOR FAILURE TO PROSECUTE IS APPROPRIATE
Pursuant to Local Rule 41-6:
A party proceeding pro se shall keep the Court and opposing parties apprised of such party's current address and telephone number, if any. If mail directed by the Clerk to a pro se petitioner's address of record is returned undelivered by the Postal Service, and if, within fifteen (15) days of the service date, such petitioner fails to notify, in writing, the Court and opposing parties of said petitioner's current address, the Court may dismiss the action with or without prejudice for want of prosecution.
Local Rule 41-6; see Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988).
To date, petitioner has not notified the Court of his new address and, as a result, the Court has no way of communicating with petitioner. Moreover, petitioner has ignored this Court's orders to explain why the Petition should be amended and has not made any contact with the Court.
III. PETITIONER'S MOTION TO AMEND SHOULD BE DENIED
As shown above, petitioner has failed to pursue his motion for leave to amend by ignoring the Court's Minute Order setting a briefing schedule on the motion and by thereafter failing to advise the Court of his new address. Therefore, the motion for leave to amend is denied.
IV. THE COURT ALREADY HAS DETERMINED THAT THE PETITION IS WITHOUT MERIT
On December 22, 2011, this Court filed a decision denying the Petition on the merits. Although the judgment was later set aside and the case reopened to allow petitioner to pursue his motion for leave to amend, the December 22, 2011 decision still properly analyzes petitioner's claims. For the reasons set forth in the December 22, 2011 decision, both claims contained in the Petition are without merit and are denied with prejudice.
V. CONCLUSION
For the foregoing reasons, the Court orders that judgment be entered dismissing the Petition with prejudice.
