Arismendez v. Muniz

Filing 14

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/10/2018 GRANTING, sua sponte, petitioner 14 days to file a response to this court's 12/4/2017 order to show cause as well as an opposition to respondent's 12 motion to dismiss. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROLANDO ARISMENDEZ,

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Petitioner,

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v.

No. 2:17-cv-0792 MCE CKD P

ORDER

M.L. MUNIZ,
Respondents.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. On October 19, 2017, respondent filed a motion to dismiss. This

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court issued an order to show cause on December 4, 2017 describing various procedural defects

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with the pending federal habeas petition. ECF No. 13. Petitioner was ordered to file either: 1) a

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notice of voluntary dismissal if he intended to pursue habeas corpus relief in the Yolo County

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Superior Court instead of federal court; or, 2) a motion to stay and abey the federal habeas

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petition along with an amended § 2254 petition. Id. To date, petitioner has failed to respond to

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either the motion to dismiss or the court’s order to show cause.

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In light of the lengthy prison sentence being challenged in the present § 2254 petition and

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petitioner’s pro se status, the court sua sponte grants petitioner one last fourteen day extension of

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time in which to respond to the court’s December 4, 2017 order to show case and respondent’s

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motion to dismiss. Petitioner is warned that his failure to respond to this court’s order will result
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in a recommendation that his federal habeas corpus petition be dismissed for failing to prosecute.

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See Local Rule 110; Fed. R. Civ. P. 41(b).

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If petitioner’s federal habeas corpus application is dismissed, even without prejudice, he

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may forever lose the ability to have any federal constitutional claims reviewed on the merits due

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to the one year statute of limitations governing such applications. See 28 U.S.C. § 2244(d)(1).

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Other than advising petitioner of this additional potential consequence for failing to respond, the

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court expresses no ultimate opinion about the timeliness of a subsequently filed federal habeas

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corpus petition. See Sossa v. Diaz, 729 F.3d 1225 (9th Cir. 2013) (holding that petitioner was

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entitled to equitable tolling of the statute of limitations because he “reasonably relied on the

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magistrate judge’s extensions of time to file his [amended] habeas petition.”).

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Accordingly, IT IS HEREBY ORDERED that petitioner is granted, sua sponte, 14 days

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from the date of this order in which to file a response to this court’s December 4, 2017 order to

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show cause as well as an opposition to respondent’s motion to dismiss.

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Dated: April 10, 2018

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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12/arissuasponteeot.docx

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