Michael Robbie Kendall v. Brian K. Birkholtz

Opinion

Case 2:22-cv-07300-GW-MAA Document 6 Filed 02/06/23 Page 1 of 2 Page ID #:23 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 2:22-cv-07300-GW-MAA Date: February 6, 2023 Title Michael Kendall v. Brian K. Birkholtz

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

Christianna Howard 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 Re: Dismissal for Lack of Prosecution

Background

On October 4, 2022, Petitioner Michael Kendall (“Petitioner”) filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (“Petition”). (Pet., ECF No. 1.) The Petition alleges one ground for relief: that Petitioner is actually innocent of his conviction because “[28 U.S.C. § 1111] can be committed in a reckless manner or by accident” (id. at 31), and therefore lacks the “mens rea necessary to be deemed a crime of violence” (id. at 4).

On December 9, 2022, the Court issued an Order re: Filing of Petition (“Order”), ordering Petitioner to show cause why the Court should not recommend characterization of the Petition as a motion pursuant to 28 U.S.C. § 2255 (“Section 2255”) and dismissal of the action as an unauthorized second or successive Section 2255 motion. (ECF No. 5.) The Court ordered Petitioner to respond to the Order by no later than thirty (30) days after the date of the Order. (Id. at 5.)

Discussion

To date, Petitioner has not responded to the Court’s Order as required. Accordingly, Petitioner is hereby ORDERED TO SHOW CAUSE by no later than March 8, 2023 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.

1 Pinpoint citations in this Order refer to the page numbers appearing in the ECF-generated headers of the Petition.

CV-90 (03/15) Civil Minutes – General Page 1 of 2 Case 2:22-cv-07300-GW-MAA Document 6 Filed 02/06/23 Page 2 of 2 Page ID #:24 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Case No. 2:22-cv-07300-GW-MAA Date: February 6, 2023 Title Michael Kendall v. Brian K. Birkholtz

Petitioner is cautioned that failure to comply with this Order by March 8, 2023 may 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).

This Order is non-dispositive. However, if Petitioner believes this Order erroneously disposes of any of his claims or precludes any relief sought, he may file objections with the district judge within twenty (20) days after the date of the Order. See Bastidas v. Chappell, 791 F.3d 1155, 1162 (9th Cir. 2015); Fed. R. Civ. P. 72.

It is so ordered.

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