Gater v. Hedgpeth et al

Filing 6

ORDER: (1) Construing 5 Notice of Inquiry as Request to Reopen Proceedings; (2) Denying Request to Reopen Proceedings; and (3) Directing Clerk to Enter Final Judgment Dismissing Petition Without Prejudice. The dismissal is without prejudice to Peti tioner to present his claims in a new habeas petition whichwill be assigned a new civil case number. The Clerk of Court shall enter a final judgment of dismissal without prejudice in this case. Signed by Judge Michael M. Anello on 8/23/2011.(All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DEMETRIUS GATER,

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Civil No.
Petitioner,

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(2) DENYING REQUEST TO REOPEN
PROCEEDINGS; AND

A. HEDGPETH, Warden, et al.,

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ORDER:
(1) CONSTRUING NOTICE OF
INQUIRY AS REQUEST TO REOPEN
PROCEEDINGS;

v.

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10cv0967-MMA (WMc)

Respondents.

(3) DIRECTING CLERK TO ENTER
FINAL JUDGEMENT DISMISSING
PETITION WITHOUT PREJUDICE

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On May 3, 2010, Petitioner, a state prisoner proceeding pro se, submitted a Petition for

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a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner neither paid

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the filing fee nor filed a motion to proceed in forma pauperis.

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On May 13, 2010, the Court dism
issed the Petition because Petitioner had failed to satisfy

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the filing fee requirement. (Doc. No. 2.) Petitioner was informed that if he wished to proceed

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with this matter he had to either pay the filing fee or file a motion to proceed in forma pauperis

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on or before July 12, 2010. (Id. at 5.) Petitioner was also notified that, because he had alleged

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exhaustion of state court remedies as to some but not all claims in the Petition, it was subject to

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dismissal as a “mixed” petition. (Id.) Petitioner was notified of his options to avoid a future

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10cv0967

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dismissal on that basis in the event he satisfied the filing fee requirem ent and had the case

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reopened. (Id.) Petitioner was informed that if he wished to proceed with this action he was

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required, in addition to satisfying the filing fee requirem to notify the Court of which option
ent,

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he chose on or before July 12, 2010. (Id. at 2-5.)

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Petitioner filed a Supplemental Memorandum Regarding Exhaustion on July 1, 2010, in

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which he attempted to demonstrate complete exhaustion by submitting selected pages from the

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state court decisions denying his claim s. (Doc. No. 4.) Petitioner did not, howe ver, pay the

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filing fee or file a m
otion to proceed in forma pauperis, and has still not done so. Thus, this case

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has remained dismissed.
Petitioner has now filed a Notice to Inquire About Petitioner’s Federal Habeas Corpus

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and Notice of Change of Address, indicating that although he has com with the Court’s May
plied

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13, 2010, Order by subm
itting documentation supporting exhaustion, he has not heard back from

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the Court regarding his case. (Doc. No. 5.) The

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Inquiry as a Request to Reopen the case.

Court will construe Petitioner’s Notice of

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Petitioner’s request to reopen the case isDENIED. The deadline for Petitioner to satisfy

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the filing fee requirement expired over a year ago. It is clear that Petitioner received the Court’s

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May 13, 2010, Order because he responded to the options notification portion of that Order.

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Yet, Petitioner has made no attempt to satisfy the filing fee requirement and has waited over a

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year before inquiring about the status of his case. This m atter remains DISMISSED. The

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dismissal is without prejudice to Petitioner to present his claim in a new habeas petition which
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will be assigned a new civil case number. The Clerk of Court shall enter a final judgement of

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dismissal without prejudice in this case.

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IT IS SO ORDERED.

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DATED: August 23, 2011

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Hon. Michael M. Anello
United States District Judge

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Copies to:

ALL PARTIES

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