Samaniego v. Covello ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ARTURO SAMANIEGO, Case No. 21-cv-00953-BAS-LL 12 Petitioner, ORDER GRANTING 13 v. RESPONDENT’S UNOPPOSED MOTION TO DISMISS (ECF No. 9) 14 PATRICK COVELLO, 15 Respondent. 16 17 On May 17, 2021, Petitioner Arturo Samaniego filed his Petition for a Writ of 18 Habeas Corpus under 28 U.S.C. § 2254. (ECF No. 1.) According to his Petition, 19 Samaniego pleaded guilty to committing robbery using a weapon, convicted of the crime 20 on June 28, 2018, and was sentenced to 20 years and 4 months on July 5, 2019. (Id. at 21 1, 23.) Samaniego challenges the validity of his conviction, on the ground that he did not 22 enter his guilty plea knowingly and voluntarily; his trial counsel rendered him ineffective 23 assistance of counsel; and he was denied resentencing in violation of his Due Process 24 rights. (Id. at 14–20.) 25 Respondents move to dismiss the Petition as untimely. (ECF No. 9.) Samaniego 26 extended the deadline to respond to the motion twice, and the latest deadline for him to 27 oppose the motion was November 30, 2021. (ECF Nos. 12, 14.) More than 21 days have 28 passed after the deadline expired, yet Samaniego has not opposed the motion. 1 Under this district’s local rules, the lack of an opposition to a motion “may constitute 2 ||a consent to the granting of a motion or other request for ruling by the court.” See Civ. 3 ||L.R. 7.1((3)(c). The Ninth Circuit has held that a district court may properly grant a 4 ||motion to dismiss for the plaintiff's failure to file timely opposition papers where the 5 || plaintiff had notice of the motion and ample time to respond. See Ghazali v. Moran, 46 6 || F.3d 52, 52 (9th Cir. 1995) (per curiam); see also Carrea v. Cate, No. 08CV2295 WQH 7 BLM, 2009 WL 2382533, at *3 n.3 (S.D. Cal. July 30, 2009). 8 Here, the record indicates that Samaniego had ample notice of Respondent’s motion 9 || to dismiss. The Court granted Samaniego two extensions, and more than three weeks have 10 || passed after the latest deadline expired. Because Samaniego was made aware of the motion 11 had ample time to respond to it, the Court deems his failure to oppose Respondent’s 12 || motion to dismiss as consent to granting it. Civ. L.R. 7.1(f)(3)(c). In addition, the Court’s 13 |}own review of the record supports dismissing the Petition. 14 Accordingly, the Court GRANTS Respondent’s motion to dismiss as unopposed. 15 ||(ECF No. 9.) The Court DISMISSES WITHOUT PREJUDICE Samaniego’s Petition. 16 IT IS SO ORDERED. 17 /) yoy 18 || DATED: December 21, 2021 Cypillg (Ayphaars 19 United States District Judge 20 21 22 23 24 25 26 27 28