Calderon v. Foulks

Filing 31

ORDER Discharging Order to Show Cause and Vacating September 12, 2017 28 FINDINGS AND RECOMMENDATIONS; NOTICE that Monetary Sanctions will Issue for Future Failure to Respond to Court Orders signed by Magistrate Judge Stanley A. Boone on 09/21/2017. Status Report due in 90 Days. (Flores, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 LUIS CALDERON, 10 Case No. 1:16-cv-00276-LJO-SAB-HC Petitioner, 11 ORDER DISCHARGING ORDER TO SHOW CAUSE AND VACATING SEPTEMBER 12, 2017 FINDINGS AND RECOMMENDATION v. 12 FREDERIC FOULKS, 13 NOTICE THAT MONETARY SANCTIONS WILL ISSUE FOR FUTURE FAILURES TO RESPOND TO COURT ORDERS Respondent. 14 15 (ECF Nos. 27, 28) 16 Petitioner is a state prisoner, represented by counsel, proceeding with a petition for writ 17 18 of habeas corpus pursuant to 28 U.S.C. § 2254. On August 16, 2016, the Court stayed the federal habeas proceedings pending exhaustion 19 20 of state remedies and ordered Petitioner to file an initial status report within thirty days of the 21 date of service of the order and every ninety days thereafter. (ECF No. 18). As Petitioner did not 1 22 file a status report within the required time period, the Court issued a third order to show cause 23 why the stay should not be vacated on August 31, 2017. (ECF No. 27). Petitioner did not respond 2 24 to the order to show cause, and the undersigned issued findings and recommendation to vacate 25 the stay on September 12, 2017. (ECF No. 28). 26 27 1 The Court previously issued orders to show cause for counsel’s failure to timely file status reports on September 29, 2016, and April 26, 2017. (ECF Nos. 19, 23). 2 The undersigned previously issued findings and recommendation to vacate the stay based on Petitioner’s failure to 28 respond to the April 26, 2017 order to show cause. (ECF No. 24). 1 On September 19, 2017, Petitioner filed objections to the findings and recommendation. 1 2 (ECF No. 29). Counsel explained that at the time he received notification of the order to show 3 cause he was in the middle of a murder trial. Further, counsel was trailing trial in two cases, one 4 of which was estimated to take forty-five days. (Id. at 1–2). Counsel also provided a status report 5 on the state court proceedings. (ECF No. 30). In this instance, the Court shall discharge the order to show cause and vacate the findings 6 7 and recommendation. However, counsel for Petitioner is advised that orders are not mere 8 suggestions to which the party may choose to respond. When the Court issues an order requiring 9 an act by a date certain, the party is required to act. Counsel Gregory Henrick Mitts is hereby 10 provided with notice that should there be future failures to respond to orders of this Court, 11 monetary sanctions will issue without further notice. Accordingly, IT IS HEREBY ORDERED that: 12 13 1. The order to show cause issued on August 31, 2017 (ECF No. 28) is DISCHARGED; 14 2. The findings and recommendation issued on September 12, 2017 (ECF No. 28) is VACATED; and 15 16 3. Petitioner is DIRECTED to file a status report within NINETY (90) days of the date of 17 service of this order, and then every NINETY (90) days thereafter, in accordance with the 18 Court’s previous order (ECF No. 18). 19 4. Counsel Gregory Henrick Mitts is advised that future failures to respond to orders of this 20 Court will result in the issuance of monetary sanctions. This shall constitute prior notice 21 for the imposition of future monetary sanctions for failure to comply with orders of this 22 Court. 23 24 IT IS SO ORDERED. 25 Dated: September 21, 2017 UNITED STATES MAGISTRATE JUDGE 26 27 28 2

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