Martinez v. Secretary, Department of Corrections et al (Collier County)
Filing
9
OPINION AND ORDER re: 1 Petition for writ of habeas corpus is dismissed without prejudice. The Clerk of Court shall enter judgment accordingly, terminate any pending motions and deadlines, and close the file. Signed by Judge Sheri Polster Chappell on 10/30/2019. (SLU)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOE MARTINEZ,
Petitioner,
v.
Case No.: 2:18-cv-652-FtM-38MRM
SECRETARY, DEPARTMENT OF
CORRECTIONS and ATTORNEY
GENERAL, STATE OF FLORIDA,
Respondents.
/
OPINION AND ORDER1
This matter is before the Court on sua sponte review of the record. Petitioner
initiated this action by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §
2254. (Doc. 1). Petitioner did not accompany the filing of his Petition with the $5.00 filing
fee or a motion to proceed in forma pauperis. See 28 U.S.C. §§ 1914(a), 1915 (a)(1).
In the Court’s Standing Order, (Doc. 6), Petitioner was cautioned that under M.D.
Fla. Rule 1.03(e), he would be required to pay the Court’s $5.00 filing fee or file a motion
to proceed in forma pauperis or his case could be dismissed without further notice.2 On
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not affect the opinion of the Court.
The Local Rule reads in pertinent part: “[a] prisoner case will be subject to dismissal by
the Court, sua sponte, if the filing fee is not paid or if the application [to proceed in forma
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August 19, 2019, the Court directed Petitioner to show cause why he failed to comply with
the Court’s Standing Order. (Doc. 8). To date, Petitioner has not responded, paid the
Court’s filing fee, or moved to proceed in forma pauperis.
The Court has taken reasonable steps to provide Petitioner an opportunity to
respond to the Court’s Orders and Petitioner was put on notice that the case would be
dismissed if he failed to comply. The Local Rules of this Court provide that “[w]henever
it appears that any case is not being diligently prosecuted the Court may, on motion of
any party or on its own motion, enter an order to show cause why the case should not be
dismissed, and if no satisfactory cause is shown, the case may be dismissed by the Court
for want of prosecution.” M.D. Fla. R. 3.10(a).
The Court finds that Petitioner has failed to prosecute this case and that the case
is due to be dismissed. Because the Court is dismissing this action without prejudice,
Petitioner may file a new petition if he wishes to pursue his claim. Petitioner is cautioned
that the statute of limitations on filing a petition for habeas corpus as set forth in 28 U.S.C.
§ 2244(d)(1) is not stayed and will continue to run while he has no case pending before
the Court.
Accordingly, it is now
ORDERED:
1. Petitioner Joe Martinez’s Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 (Doc. 1) is DISMISSED without prejudice.
pauperis] is not filed within 30 days of the commencement of the action.” M.D. Fla. Rule
1.03(e).
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2. The Clerk of Court shall enter judgment accordingly, terminate any pending
motions and deadlines, and close the file.
DONE and ORDERED in Fort Myers, Florida this 30th day of October 2019.
SA: FTMP-2
Copies: All Parties of Record
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