Michael Paul Rosas v. Warden

Opinion

CIVIL MINUTES – GENERAL Case No. EDCV 19-0760 SVW (PVC) Date: May 1, 2020 Title Michael Paul Rosas v. 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 VACATED FOR PETITIONER’S FAILURE TO FILE A STATUS REPORT On April 19, 2019, Petitioner, a California state prisoner proceeding pro se, constructively filed a petition under 28 U.S.C. § 2254 alleging two grounds for federal habeas relief.1 (“Petition,” Dkt. No. 1). The Petition alleged that: (1) the trial court erred in excluding prior testimony of an unavailable witness; and (2) the exclusion deprived Petitioner of the right to present a defense. (Id. at 6). Respondent filed an Answer to the Petition on June 17, 2019. (“Ans.,” Dkt. No. 9). In the interim, Petitioner moved for a stay so that he could attempt to exhaust two additional grounds for relief in state court that had not been raised in the Petition, based on: (1) Petitioner’s entitlement to resentencing under California Senate Bill 620 regarding the firearm enhancement, and (2) ineffective assistance of appellate counsel for 1 Pursuant to the mailbox rule, “[w]hen a prisoner gives prison authorities a habeas petition or other pleading to mail to court, the court deems the petition constructively ‘filed’ on the date it is signed[,]” which in this case was April 19, 2019. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010); see also Houston v. Lack, 487 U.S. 266, 270 (1988). CIVIL MINUTES – GENERAL Case No. EDCV 19-0760 SVW (PVC) Date: May 1, 2020 Title Michael Paul Rosas v. Warden

failing to raise the Senate Bill 620 claim. (Dkt. No. 6). On July 1, 2019, over Respondent’s opposition, (Dkt. No. 7), the Magistrate Judge granted Petitioner’s motion for a stay. (Dkt. No. 12). Pursuant to the Court’s Order, Petitioner was required to file a status report every ninety days to apprise the court of the status of his state court proceedings. (Id. at 5). Petitioner failed to file any status report after the stay was granted. Accordingly, on December 5, 2019, the Court issued an Order to Show Cause requiring Petitioner to explain why the stay should not be vacated. (“OSC,” Dkt. No. 15). In response to the OSC, on December 23, 2019, Petitioner filed a Motion to Renew Stay in which he informed the Court that his state court petition had been granted “and is now waiting for possible transfer back down to Superior Court to resolve the Senate Bill 620 issue.” (“Motion,” Dkt. No. 16 at 2). Petitioner asked that the stay be renewed “depending on the outcome of his Senate Bill 620 issue in Superior Court.” (Id.). The Court granted Petitioner’s Motion to Renew Stay on February 4, 2020. (“Order,” Dkt. No. 19). In that Order, the Court required Petitioner to file a status report within sixty days, i.e., by April 6, 2020,2 to apprise the Court of the status of his state court resentencing proceedings. (Id. at 1). The Court’s deadline has expired and Petitioner has not filed a status report.3 Accordingly, Petitioner is ORDERED TO SHOW CAUSE within twenty-one days of the date of this Order why the stay should not be vacated so that this action may proceed solely on the two grounds for relief raised in the Petition. Petitioner is expressly 2 Sixty days from February 4, 2020 was April 4, 2020. However, because April 4, 2020 was a Saturday, the deadline was continued to the next Court day, i.e., Monday, April 6, 2020. See Fed. R. Civ. P. 6(a)(1)(C). 3 Due to the retirement of the Magistrate Judge formerly assigned to this case, this matter was reassigned to the above-referenced Magistrate Judge on April 29, 2020. (Dkt. No. 21). CIVIL MINUTES – GENERAL Case No. EDCV 19-0760 SVW (PVC) Date: May 1, 2020 Title Michael Paul Rosas v. Warden

cautioned that the failure to file a timely response to this Order may be deemed consent to the lifting of the stay. See Local Rule 7-12 (failure to file required document may be deemed consent to the granting of a motion). Petitioner may discharge this Order to Show Cause by filing a status report by the Court’s deadline describing the status of his state court proceedings. Petitioner is further cautioned that the continuing failure to comply with Court orders may result in a recommendation that this action be dismissed with prejudice for failure to prosecute and obey court orders pursuant to Federal Rule of Civil Procedure 41(b). IT IS SO ORDERED.

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