Smith v. Dwyer

Filing 8

ORDER OF DISMISSAL. Signed by Judge Vaughn R Walker on 8/9/2010. (Attachments: # 1 proof of service)(cgk, COURT STAFF) (Filed on 8/9/2010)

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Smith v. Dwyer Doc. 8 1 2 3 4 5 6 7 8 9 10 11 United States District Court For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On July 1, 2010, the court issued an order granting petitioner leave to proceed in forma pauperis and dismissing the petition with leave to amend. Doc #6. The court granted petitioner v GLENN DWYER, Warden, Respondent. / ANTHONY SMITH, Petitioner, ORDER OF DISMISSAL No C-09-5862 VRW (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA leave to amend because "[i]n its present form, the petition is not manageable." Id at 2. The court noted that petitioner had "filed a standard form petition for a writ of habeas corpus, along with hundreds of pages of attachments that appear to include postconviction petitions filed previously in the state courts" and that "[a]lthough petitioner references in the * * * petition claims raised in state court, it remains unclear what legal claims petitioner is raising in this court and the factual bases upon which 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 they rest." Id. The court gave petitioner thirty (30) days from the date of the order to file an amended petition and warned that "[f]ailure to amend within the designated time will result in the dismissal of the case. The amended petition completely replaces the original petition; petitioner must include in it all the claims he wishes to present. reference." Id at 3 He may not incorporate any other document by Over thirty (30) days have elapsed since petitioner was ordered to file an amended petition. He has failed to do so. Accordingly, the petition for writ of habeas corpus in the above-captioned action is DISMISSED without prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). The clerk is directed to terminate any pending motions as moot and close the file. IT IS SO ORDERED. VAUGHN R WALKER United States District Chief Judge G:\PRO-SE\VRW\HC.09\Smith-09-5862-dismiss-failure to file fap.wpd 2

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