Donald Keith Cherry v. Holm ( 2021 )

CIVIL MINUTES – GENERAL Case No.: 2:21-cv-03084-DMG-MAA Date: July 28, 2021 Title: Donald Keith Cherry, Jr. v. Captain Holm Present: The Honorable MARIA A. AUDERO, United States Magistrate Judge Holidae Crawford N/A Deputy Clerk Court Reporter / Recorder Attorneys Present for Petitioner: Attorneys Present for Respondent: N/A N/A Proceedings (In Chambers): Order To Show Cause Why Petition Should Not Be Dismissed for Failure to Prosecute Background On April 4, 2021, the Court received and filed Petitioner Donald Keith Cherry’s (“Petitioner”) pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“Section 2254”) (“Petition”). (Pet., ECF No. 1.) The Petition alleges one ground for federal habeas relief, stating as follows: Per Penal Code 664, I was supposed to be sentenced to half the sentence guidelines for attempted robbery. So 1 [year], 18 [months], 2 ½ [years] was accurate. I was given time for robbery 2 [years], 3 [years], 5 [years]. Mid term of (3 [years]) doubled to (6 [years]) for past strikes. The deal was illegal in sentence guidelines. I should have (18 [months]) or (3 [years]). (Id. at 5.1) On April 19, 2021, the Court issued an Order identifying the following two procedural defects with the Petition: (1) Petitioner’s claim appeared to be unexhausted because Petitioner stated that he had not raised the claim in state court proceedings either on direct appeal or through a habeas corpus petition; and (2) Petitioner had not paid the $5 filing fee or submitted a completed request to 1 Pinpoint citations in this Order refer to the page numbers appearing in the ECF-generated headers of the Petition. CIVIL MINUTES – GENERAL Case No.: 2:21-cv-03084-DMG-MAA Date: July 28, 2021 Title: Donald Keith Cherry, Jr. v. Captain Holm proceed in forma pauperis (“April 19 Order”). (Apr. 19, 2021 Or., ECF No. 4.) The Court ordered Petitioner to respond to these issues by no later than May 19, 2021. (Id. at 3–4.) On April 26, 2021, the Court received and filed Petitioner’s Request to Proceed In Forma Pauperis, with the required supporting documentation (“IFP Request”). (IFP Request, ECF No. 5.) On May 21, 2021, the Court granted Petitioner’s Request (“May 21 Order”). (May 21, 2021 Or., ECF No. 7.) On May 6, 2021, the Court received and filed Petitioner’s Response to the Court’s April 19 Order (“May 6 Response”). (May 6, 2021 Response, ECF No. 6.) On May 27, 2021, the Court issued an Order to Show Cause why the Petition should not be dismissed as unexhausted, based on Petitioner’s failure to present his claims to the California courts on direct appeal or through state habeas corpus proceedings (“May 27 Order”). (May 27, 2021 Order, ECF No. 8.) Petitioner was required to file his response or request for a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005) by no later than June 28, 2021. (Id. at 3–4.) Discussion To date, Petitioner has not responded to the May 27 Order as required. Accordingly, Petitioner is hereby ORDERED TO SHOW CAUSE by no later than August 27, 2021 why the Court should not recommend that the case be dismissed for lack of prosecution and failure to comply with court orders. See Fed. R. Civ. P. 41(b); C.D. Cal. L.R. 41-1, 41-6. Failure to comply with this order by August 27, 2021 will result in a recommendation that this action be dismissed for failure to prosecute and for failure to comply with court orders pursuant to Federal Rule of Civil Procedure 41(b). It is so ordered.