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TURNER v. RICHARDSON, 2:13-cv-1160 JAM AC P. (2014)

Court: District Court, E.D. California Number: infdco20140424865 Visitors: 23
Filed: Apr. 22, 2014
Latest Update: Apr. 22, 2014
Summary: ORDER ALLISON CLAIRE, District Judge. Petitioner, a state prisoner proceeding pro se, filed an application pursuant to 28 U.S.C. 2254. When petitioner failed to respond to this court's Order to Show Cause, ECF No. 27, the undersigned recommended dismissal of the instant petition as duplicative of Turner v. Richardson, No. 2:13-cv-0454 WBS AC P. See ECF No. 29, Findings and Recommendations filed on March 21, 2014. In the alternative, it was recommended that the case be dismissed for petit
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ORDER

ALLISON CLAIRE, District Judge.

Petitioner, a state prisoner proceeding pro se, filed an application pursuant to 28 U.S.C. § 2254. When petitioner failed to respond to this court's Order to Show Cause, ECF No. 27, the undersigned recommended dismissal of the instant petition as duplicative of Turner v. Richardson, No. 2:13-cv-0454 WBS AC P. See ECF No. 29, Findings and Recommendations filed on March 21, 2014. In the alternative, it was recommended that the case be dismissed for petitioner's wholesale failure to comply with the show cause order. Id., citing Fed. R. Civ. P. 41(b); L. R. 110.

Petitioner had been ordered to show cause why this petition should not be dismissed as duplicative of Turner v. Richardson, 2:13-cv-0454 WBS AC P because that case, like this one, challenges petitioner's March 18, 2010 conviction in Yolo County Superior Court on charges of transportation and possession of methamphetamine, and the resulting eighteen year sentence imposed on May 10, 2010. Petitioner was informed that if he wished to proceed only in Case No. 2:13-cv-0454 WBS AC P, he could file a notice of voluntary dismissal of the instant action pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i).

When the time for responding to the show cause order had expired, the court issued the February 5th Findings and Recommendations, noting that an amended petition had been filed in Case No. 2:13-cv-0454 WBS AC P on February 21, 2014. Petitioner has now in the instant case filed both a request for an extension of time and objections to the Findings and Recommendations. ECF No. 30. Petitioner contends that he believed his counsel in the other action would respond to the show cause order in this case but did not due to some form of miscommunication. Although the case docket does not reflect it, petitioner also asserts that he did mail a response to the show cause order on February 27, 2014 by placing it in a mailbox at Corcoran State Prison. Petitioner claims he has had problems with the mailing of his legal mail due to the activities of three guards. Petitioner includes a copy of an inmate appeal assignment notice, dated January 29, 2014, upon which petitioner has written that he filed a "citizen's complaint" against a correctional officer for tampering with his legal mail and obstructing access to the court. Id. at 7.

Petitioner has obviously been able to file the instant request and objections. Nevertheless, the Findings and Recommendations will be vacated and petitioner will be permitted one last opportunity to respond to the show cause order. Failure to do so will result in a recommendation of dismissal of this matter.

Accordingly, IT IS ORDERED that:

1. The Findings and Recommendations, ECF No. 29, filed on March 21, 2014 are hereby vacated;

2. Petitioner's request at ECF No. 30 is granted to the extent that he is permitted one further opportunity to respond to the show cause order at ECF No. 27 by no later than May 15, 2014;

3. There will be no further extension of time; failure to respond timely in accordance with this order will result in a recommendation of dismissal of this action; and

4. The Clerk of the Court is directed, along with serving petitioner with this order, to re-serve upon him the February 5, 2014 show cause order, ECF No. 27.

Source:  Leagle

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