Jose A. Barrios v. Warren L. Montgomery

Filing 24

ORDER TO SHOW CAUSE by Magistrate Judge Alka Sagar. Petitioner is HEREBY ORDERED TO SHOW CAUSE why this action should not be dismissed as a mixed petition, pursuant to Rose v. Lundy, 455 U.S. 509, 522 (1982). Petitioner may file a response to this Order by filing - no later than July 20, 2016. (See Order for complete details) (afe)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-7868-BRO (AS)

Title

Jose A. Barrios v. Warren L. Montgomery, Warden

Present: The
Honorable

Date

June 30, 2016

Alka Sagar, United States Magistrate Judge
Alma Felix

N/A

Deputy Clerk

Court Reporter / Recorder

Attorneys Present for Petitioner:

Attorneys Present for Respondent:

N/A

N/A

Proceedings:

(IN CHAMBERS) ORDER TO SHOW CAUSE

On October 7, 2015, Jose A. Barrios (“Petitioner”) filed a Petition for Writ of Habeas
Corpus by a Person in State Custody, pursuant to 28 U.S.C. § 2254 (“Petition”). (Docket
Entry No. 1). On April 21, 2016, Respondent filed a motion to dismiss the Petition,
contending that Ground Two of the Petition (specifically, Petitioner received ineffective
assistance of counsel based on his trial counsel’s “failure to object to irrelevant drug use
admitted evidence”, see Petition at 5, Attachment at 5c) is unexhausted and therefore the
Petition is a “mixed petition.” (Docket Entry No. 20). Respondent also filed a Notice of
Lodging with lodged documents in support of the motion to dismiss. (Docket Entry No. 21).
On April 21, 2016, the Court issued an Order directing Petitioner to file an opposition to the
Motion to Dismiss no later than May 23, 2016. (Docket Entry No. 22).

Although Petitioner attempted to file an opposition to the motion to dismiss, the
document was returned to him unfiled based on his missing signature. On May 24, 2016,
the Court ordered Petitioner to re-file the document with the required signature and date.
(Docket Entry No. 23). As of today’s date, Petitioner has failed to file an Opposition to the
Motion to Dismiss or any response to the Court’s April 21, 2016 Order requiring Petitioner
to file an Opposition to the Motion to Dismiss.
Accordingly, Petitioner is HEREBY ORDERED TO SHOW CAUSE why this action
should not be dismissed as a mixed petition, pursuant to Rose v. Lundy, 455 U.S. 509, 522
(1982). Petitioner may file a response to this Order by filing - no later than July 20, 2016 an Opposition to the Motion to Dismiss, or a Declaration, under penalty of perjury, stating
CV-90 (10/08)

CIVIL MINUTES - GENERAL

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-7868-BRO (AS)

Date

Title

June 30, 2016

Jose A. Barrios v. Warren L. Montgomery, Warden

why Plaintiff is unable to file an opposition, or a request for voluntary dismissal of this
action.
Petitioner is warned that failure to comply with this Order will result in a
recommendation that this action being dismissed with prejudice for his failure to
prosecute and/or comply with Court orders pursuant to Fed.R.Civ.P. 41(b) and/or
dismissal without prejudice as a mixed petition.

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0
0

Initials of

AF

Preparer

CV-90 (10/08)

CIVIL MINUTES - GENERAL

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