Joshua Martinez v. Warren L. Montgomery

Filing 15

MINUTES IN CHAMBERS by Magistrate Judge Gail J. Standish Re Order to Show Cause. Response to Order to Show Cause due by 12/31/2017. (ec)

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

EDCV 16-2612-JLS (GJS)

Title

Joshua Martinez v. Warren L. Montgomery, Warden

Present:

Date

December 1,
2017

Hon. Gail J. Standish, United States Magistrate Judge
E. Carson

N/A

Deputy Clerk

Court Reporter / Recorder

Attorneys Present for Petitioner:

Attorneys Present for Respondent:

None present

None present

Proceedings:

(IN CHAMBERS) Order To Show Cause

On December 22, 2016, Petitioner filed a Section 2254 habeas petition that, on its
face, showed that it was “mixed,” i.e., contained a mix of exhausted and unexhausted
claims. In fact, Petitioner admitted that Grounds Four through Six were unexhausted.
Following further proceedings, the Court granted Petitioner’s request for a Rhines stay on
February 2, 2017 [Dkt. 8, “February 2 Order”].
Pursuant to the February 2 Order, Petitioner was required to file Status Reports
every 45 days, advising the Court of the status of his state habeas proceeding(s).
Petitioner filed four Status Reports, with the last one filed on June 28, 2017 [Dkt. 13]. In
that June 28 Status Report, Petitioner advised that the California Court of Appeal had
denied his habeas petition on April 19, 2017, and that he would be filing a habeas petition
in the California Supreme Court within two weeks.
Petitioner has not communicated with the Court since that June 28 filing and is in
violation of the February 2 Order. The Court has reviewed the electronic dockets
available for the California Supreme Court, and they do not show any habeas filing by
Petitioner. It may be that Petitioner has abandoned his exhaustion efforts with respect to
Grounds Four through Six. Indeed, it is unclear that he wishes to pursue this action.

Initials of preparer _efc___
CV-90 (10/08)

CIVIL MINUTES - GENERAL

Page 1 of 2

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

EDCV 16-2612-JLS (GJS)

Date

Title

December 1,
2017

Joshua Martinez v. Warren L. Montgomery, Warden

The February 2 Order explicitly cautioned Petitioner that “the failure to comply
with these requirements may result in the Court ordering the stay to be vacated nunc pro
tunc and the possible dismissal of Grounds Four through Six.” Under the circumstances,
it appears that vacating the Rhines stay may be warranted.
Accordingly, Petitioner is ORDERED TO SHOW CAUSE why the Rhines stay
imposed in this action should not be vacated and dismissal of the Petition – on the ground
that it is mixed – should not be recommended, absent a dismissal of Grounds Four
through Six. By no later than December 31, 2017, Petitioner shall file a Response to
this Order To Show Cause explaining his both failure to file a habeas petition in the
California Supreme Court and his failure to comply with the February 2, Order. If
Petitioner chooses to voluntarily dismiss unexhausted Grounds Four through Six, he shall
so advise the Court.
IT IS SO ORDERED.

Initials of preparer _efc___
CV-90 (10/08)

CIVIL MINUTES - GENERAL

Page 2 of 2