Garcia v. Swarthout

Filing 10

ORDER DIRECTING PETITIONER TO FILE A NOTICE OF INTENT PROSECUTE AND TO PROVIDE COURT WITH CURRENT ADDRESS. Signed by Judge Thelton E. Henderson on 06/19/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 6/19/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C-11-1188 TEH (PR)

ROBERT ROY GARCIA,

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Petitioner,

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v.

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ORDER DIRECTING PETITIONER TO
FILE A NOTICE OF INTENT TO
PROSECUTE AND TO PROVIDE COURT
WITH CURRENT ADDRESS

GARY SWARTHOUT, Warden,

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Respondent.

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/

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Petitioner has filed a pro se Petition for a Writ of

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Habeas Corpus under 28 U.S.C. § 2254 challenging a judgment of

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conviction from Sonoma County Superior Court.

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5, 2011, Petitioner informed the Court that he wished to dismiss his

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unexhausted claim and proceed with his exhausted claims.

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At that time, Petitioner also informed the Court that he was no

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longer incarcerated and had been paroled for six and a half months.

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Id.

Doc. #1.

On December

Doc. #5.

Petitioner did not provide the Court with an updated address.

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On February 1, 2012, the Court issued an order directing

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Respondent to show cause why a writ of habeas corpus should not be

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granted.

Doc. #6.

In this order, the Court also directed

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Petitioner to file a signed signature page for his Petition by

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February 24, 2012.

A copy of the order was mailed to Petitioner’s

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address of record:

CSP-Solano, P.O. Box 4000, Vacaville CA 95696.

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It appears that California State Prison - Solano forwarded the order

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to the Santa Rosa Parole Units 1, 2, and the order was returned by

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the Santa Rosa Parole Unit as “Unable to Forward.”

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Another copy of the order was mailed to the return address listed on

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Petitioner’s last filing: 954 Baxter Avenue, Sonoma CA 95476.

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mail was also returned to the Court as undeliverable.

United States District Court
For the Northern District of California

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Doc. #8.

This

See Doc. #7.

On March 29, 2012, Respondent filed a motion to dismiss

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for failure to exhaust state remedies.

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months have passed, and Petitioner has not filed any response to the

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motion to dismiss.

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signature page for his Petition.

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with the Court since December 5, 2011.

Doc. #9.

Nearly three

Nor has Petitioner filed the required signed
Petitioner has not communicated

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Pursuant to Federal Rule of Civil Procedure 41(b), a

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district court may sua sponte dismiss an action for failure to

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prosecute or to comply with a court order.

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370 U.S. 626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th

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Cir. 1991).

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failure to comply is unreasonable.

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the litigant prior notice of its intention to dismiss.

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v. United States Postal Serv., 833 F.2d 128, 133 (9th Cir. 1987).

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Furthermore, pursuant to Northern District Local Rule 3-11, a party

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proceeding pro se whose address changes while an action is pending

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must promptly file and serve upon all opposing parties a notice of

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change of address specifying the new address.

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See Link v. Wabash R.R.,

But such a dismissal should only be ordered when the

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See id.

The Court should afford
See Malone

See L.R. 3-11(a).

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Accordingly, it is in the interests of justice and

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judicial efficiency for the Court to establish whether Petitioner

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intends to continue to prosecute this action.

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Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in

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habeas cases).

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address and his continued intent to prosecute no later than July 16,

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2012.

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without prejudice for failure to prosecute under Rule 41(b) of the

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Federal Rules of Civil Procedure.

See Martinez v.

Petitioner shall file a notice of his current

Failure to do so will result in the dismissal of this action

See Malone, 833 F.2d at 133 (the

United States District Court
For the Northern District of California

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district court should afford the litigant prior notice before

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dismissing for failure to prosecute).

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The Clerk is directed to serve a copy of this Order to the

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return address listed on Petitioner’s most recent filing: 954 Baxter

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Ave., Sonoma, CA 95476.

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IT IS SO ORDERED.

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DATED

06/19/2012
THELTON E. HENDERSON
United States District Judge

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G:\PRO-SE\TEH\HC.11\Garcia-11-1188-41b notice.wpd

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