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GAXIOLA-SANCHEZ v. HOLDER, 2:15-cv-0923-MCE-EFB P (TEMP). (2015)

Court: District Court, E.D. California Number: infdco20151116962 Visitors: 6
Filed: Nov. 13, 2015
Latest Update: Nov. 13, 2015
Summary: ORDER EDMUND F. BRENNAN , Magistrate Judge . Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. 2241. On May 18, 2015, the court issued an order directing service of the petition on respondent. Respondent was therein ordered to file an answer or a motion to dismiss within 60 days, and petitioner was ordered to file either a traverse or an opposition thereto within 30 days thereafter. ECF No. 5. On July 2, 2015, respondent fi
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ORDER

Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. On May 18, 2015, the court issued an order directing service of the petition on respondent. Respondent was therein ordered to file an answer or a motion to dismiss within 60 days, and petitioner was ordered to file either a traverse or an opposition thereto within 30 days thereafter. ECF No. 5.

On July 2, 2015, respondent filed a motion to dismiss the operative habeas petition. ECF No. 12. Plaintiff has, to date, failed to file an opposition to the motion to dismiss. On September 9, 2015, after noting that it appeared that petitioner may have been temporarily transferred to another institution while the motion was pending, the court issued an order granting petitioner thirty days to file an opposition. ECF No. 13 at 2. More than sixty days have passed since that order was issued, and petitioner has failed to file an opposition or statement of non-opposition.

The court notes that, on October 2, 2015, petitioner filed a document entitled "Motion to Withdraw," which provided in pertinent part: "Petitioner request that the Court enters an order allowing Petitioner to withdraw his previously filed motion under case no. 2:15-cv-923 DAD." ECF No. 14. The court is unsure of what petitioner intended by this statement. The only previously-filed motion that is outstanding is respondent's motion to dismiss; petitioner may not request withdrawal of a motion filed by the opposing party. Petitioner's only options are to file an opposition or a statement of non-opposition to the motion. Alternately, if petitioner intended to withdraw his petition for writ of habeas corpus in its entirety, he is informed that he may do so by filing a notice of voluntary dismissal under Federal Rule of Civil Procedure 41(a)(1)(A).

Petitioner will be given one final opportunity to file an opposition to respondent's motion to dismiss. Plaintiff is advised that Local Rule 230(l) provides in pertinent 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 . . . ." Further, 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." Accordingly, petitioner is advised that his failure to comply with this order will result in a recommendation that this action be dismissed.

Accordingly, IT IS HEREBY ORDERED that within thirty days of the date of this order, plaintiff shall file an opposition, if any, to the motion to dismiss. Failure to file an opposition will be deemed a statement of non-opposition and will result in a recommendation that this action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).

Source:  Leagle

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