Bryon Keith Street v. Robert Neuschmid ( 2020 )

CIVIL MINUTES – GENERAL Case No. CV 18-7734 JGB (PVC) Date: May 8, 2020 Title Bryon Keith Street v. Robert Neuschmid, Warden Present: The Honorable Pedro V. Castillo, United States Magistrate Judge Marlene Ramirez None Deputy Clerk Court Reporter / Recorder Attorneys Present for Petitioner: Attorneys Present for Respondent: None None PROCEEDINGS: [IN CHAMBERS] ORDER TO SHOW CAUSE WHY THE STAY IN THIS ACTION SHOULD NOT BE LIFTED FOR PETITIONER’S FAILURE TO FILE A STATUS REPORT On October 21, 2019, the Court granted Petitioner’s motion for a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005). (Dkt. No. 24). As a condition of the stay, Petitioner was ordered to file a status report beginning on November 11, 2019 and every forty-five days thereafter. (Id. at 7). Petitioner was instructed that each status report “must set forth the status of the state habeas petition and all activity that has occurred since the filing of the previous Status Report. Petitioner shall attach a current copy of the docket sheet and any orders or decisions that the state court has issued.” (Id.). The Court expressly cautioned Petitioner that the “[f]ailure to file a required Status Report in accordance with this Order will result in a recommendation that this action be dismissed with prejudice for failure to prosecute and/or failure to comply with Court orders.” (Id.) (emphasis omitted). After obtaining an extension, Petitioner filed his first, and so far, only status report on December 30, 2019. (Dkt. No. 27). Pursuant to the Court’s Order granting the stay, Petitioner was required to file status reports every forty-five days. Therefore, the next status report was due by February 13, 2020. However, as of the date of this Order, CIVIL MINUTES – GENERAL Case No. CV 18-7734 JGB (PVC) Date: May 8, 2020 Title Bryon Keith Street v. Robert Neuschmid, Warden Petitioner has neither filed a status report nor requested an extension of time in which to do so. Accordingly, Petitioner is ORDERED TO SHOW CAUSE, within fourteen days of the date of this Order, why the stay in this action should not be lifted for Petitioner’s failure to file the required status reports. Petitioner may discharge this OSC by filing either a status report setting forth the information required by the Court’s Order granting a stay, or a declaration, under oath, explaining why he is unable to do so. Petitioner is advised that if the stay is lifted, the Court may recommend that the Petition be dismissed as “mixed” because it contains exhausted and unexhausted claims. Alternatively, if Petitioner no longer wishes to pursue some or all of his claims, he may voluntarily dismiss this action or his unexhausted claims. If Petitioner elects to dismiss his unexhausted claims, this action will proceed only on any surviving exhausted claims. Petitioner is cautioned, however, that if he voluntarily dismisses his unexhausted claims, those claims may be barred as untimely or successive if he attempts to reassert them in a future habeas action. A blank notice of dismissal is attached for Petitioner’s convenience. Petitioner is expressly warned that the failure to respond to this Order to Show Cause by the Court’s deadline may result in a recommendation that this action be dismissed for failure to prosecute and obey court orders pursuant to Federal Rule of Civil Procedure 41(b). IT IS SO ORDERED. 00:00 Initials of Preparer mr