Juan Jose Rios v. Neil McDowell

• Court: District Court, C.D. California
• Decided: March 15, 2021
• Docket: 5:21-cv-00432
• Status: Unknown

Opinion

CIVIL MINUTES – GENERAL

Case No.: 5:21-cv-00432-RGK-MAA Date: March 15, 2021 Title: Juan Jose Rios v. Neil McDowell

Present: The Honorable MARIA A. AUDERO, United States Magistrate Judge

James Muñoz N/A Deputy Clerk Court Reporter / Recorder

Attorneys Present for Plaintiff: Attorneys Present for Defendants: N/A N/A

Proceedings (In Chambers): Order re: Filing of Petition

On March 10, 2021, the Court received and filed Petitioner Juan Jose Rios’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 five grounds for federal habeas relief: (1) “the jury should not have been instructed on [Petitioner’s] consciousness of guilt based on fabricated testimony because it was not conclusively established that any testimony was false or [Petitioner] was involved in any fabrication”; (2) “[t]he prosecutor committed prejudicial misconduct during her closing argument by purportedly misstating the law and invoking the prestige of her office”; (3) “the trial court failed to make the required factual findings to support imposition of mandatory consecutive sentences under [California Penal Code section] 667.6 subdivision (d)”; (4) “the evidence was insufficient to support those findings”; and (5) “the trial court erred by imposing various fines and fees without holding an ability to pay hearing.” (Id. at 4.)1

Rule 3(a) of the Rules Governing Section 2254 Cases in the United States District Courts requires that a habeas petition be accompanied by the applicable filing fee or a request for leave to proceed in forma pauperis including a certificate from an authorized officer of the petitioner’s institution showing the amount of money or securities in the petitioner’s institutional account. In this case, Petitioner has neither submitted the $5 filing fee applicable to Section 2254 petitions nor submitted a request to proceed in forma pauperis. (See Pet.)

Accordingly, Petitioner is ORDERED to submit, by no later than April 14, 2021, either (1) the filing fee of $5 or (2) a completed request to proceed in forma pauperis with the required

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.: 5:21-cv-00432-RGK-MAA Date: March 15, 2021 Title: Juan Jose Rios v. Neil McDowell supporting documentation. A form Declaration in Support of Request to Proceed In Forma Pauperis is attached to this Order.

Petitioner is expressly cautioned that failure to respond to this Order by April 14, 2021 will result in a recommendation that the Petition be dismissed without prejudice for failure to prosecute and failure to comply with a court order pursuant to Federal Rule of Civil Procedure 41(b). See, e.g., Young v. United States, 465 F. App’x 597, 598 (9th Cir. 2012) (affirming dismissal of habeas petition for failure to pay filing fee or submit complete request to proceed in forma pauperis); Culler v. Bd. of Prison Terms, 405 F. App’x 263, 264 (9th Cir. 2010) (same).

It is so ordered.

Attachments Form CV-69, pp. 10-11 (Declaration in Support of Request to Proceed In Forma Pauperis)