Schneider v. Swarthout

Filing 23

ORDER signed by Magistrate Judge Kendall J. Newman on 5/19/11 ORDERING that petitioner SHOW CAUSE within 14 days, why his failure to oppose respondents 12/8/10 motion to dismiss should not be deemed a waiver of any opposition to the granting of the motion, and shall file an opposition to the motion to dismiss.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROGER SCHNEIDER,

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Petitioner,
vs.
GARY SWARTHOUT, Warden,

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No. 2:10-cv-1869 GEB KJN P

Respondent.

ORDER

___________________________/

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Petitioner is a state prisoner proceeding without counsel and in forma pauperis.

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This habeas corpus action was filed June 9, 2008, pursuant to 28 U.S.C. § 2254, which

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challenges a 2005 decision of the Board of Parole Hearings denying petitioner parole.1 Presently

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pending is respondent’s motion to dismiss, filed December 8, 2010, on the ground that the

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petition was untimely filed beyond the one-year statute of limitations set forth in the

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Antiterrorism and Effective Death Penalty Act. Petitioner has twice sought and obtained

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extensions of time within which to file an opposition to the motion to dismiss. (Dkt. Nos. 20,

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22.) The last extension of time, to May 6, 2011, has passed, and petitioner has not filed an

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opposition or otherwise communicated with the court.

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This action is referred to a United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(B), Local General Order No. 262, and Local Rule 302.
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Local Rule 230(l) provides in part: “Failure of the responding party to file

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written opposition or to file a statement of no opposition may be deemed a waiver of any

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opposition to the granting of the motion . . . .”

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Good cause appearing, IT IS HEREBY ORDERED that petitioner show cause,

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within fourteen days, why his failure to oppose respondent’s December 8, 2010 motion to

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dismiss should not be deemed a waiver of any opposition to the granting of the motion, and shall

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file an opposition to the motion to dismiss. Failure of petitioner to timely respond to this order,

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or to file an opposition to the pending motion to dismiss, will be construed as abandonment of

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this action and result in a recommendation that this action be dismissed.

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DATED: May 19, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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