Jose A. Barrios v. Warren L. Montgomery

Filing 49

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 must file a response to this Order within twenty (20) days of the date of thisOrder (by no later than August 24, 2017). (See Order for complete details) (Attachments: # 1 Courts July 25, 2016 Minute Order) (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

August 4, 2017

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 July 25, 2016 (following the filings of Respondent’s Motion to Dismiss the
Petition and Petitioner’s Opposition to the Motion to Dismiss the Petition, Docket Entry Nos.
20, 25), the Court issued a Minute Order requiring Petitioner to select one of four options,
because Ground Two alleged in the Petition (i.e., Petitioner received ineffective assistance
of counsel based on his trial counsel’s “failure to object to irrelvant drug use admitted
evidence”, see Petition at 5, Attachment at 5c) was unexhausted. (Docket Entry No. 26).
Specifically, the Court ordered Petitioner to either: (1) voluntarily dismiss the entire action
without prejudice; (2) voluntarily dismiss Ground Two of the Petition and proceed only the
exhausted claims; (3) request a stay of the Petition, pursuant to Rhines v. Weber, 544 U.S.
269, 277-78 (2005), while he returns to state court to exhaust his unexhausted claim; or (4)
dismiss Ground Two of the Petition, and pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir.
2002) (“Kelly”), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir.
2007), file a motion seeking a stay of his exhausted claims while he returns to the state court
to exhaust his unexhausted claim. Id. at 4-5.
On July 6, 2017, Petitioner filed a “Motion for Stay and Abeyance[:] Response to
Order to Show Cause” (“Motion for a Stay”) (Docket Entry No. 46), an election
corresponding to Option 3 of the Court’s July 25, 2016 Minute Order.
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

August 4, 2017

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

On July 7, 2017, the Court issued an Order denying Petitioner’s Motion for a Stay, and
ordering Petitioner, by July 24, 2017, to select Option 1, 2 or 4 of the Court’s July 25, 2016
Minute Order. (Docket Entry No. 47). Petitioner was expressly warned that his failure to
file a timely response to the Court’s July 7, 2017 Order might result in a recommendation
that this action be dismissed with prejudice for his failure to prosecute and/or obey Court
orders pursuant to Fed.R.Civ.P. 41(b). Id. at 2. Petitioner further was expressly warned that
his failure to select one of the three options identified in the Court’s July 25, 2016 Minute
Order might result in the dismissal of the Petition as a mixed petition. Id.
As of today’s date, Petitioner has failed to file a Response to the Court’s July 7, 2017
Order.
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 availing himself of one of the three
remaining options set forth in the Court’s July 25, 2016 Minute Order: (1) voluntary
dismissal of the entire action without prejudice; (2) voluntary dismissal of the unexhausted
claim, as identified above, and proceeding on the exhausted claims; or (3) dismissal of the
unexhausted claim, as identified above, and pursuant to Kelly, move for a stay of this action.
Information regarding the requirements for, and potential consequences of, each of
these options are explained in the Court’s July 25, 2016 Minute Order, a copy of which is
attached.
Petitioner must file a response to this Order within twenty (20) days of the date of this
Order (by no later than August 24, 2017) .
Petitioner is warned that failure to comply with this Order will result in a
recommendation that this action be 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.
CV-90 (10/08)

CIVIL MINUTES - GENERAL

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