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Isidro Castro v. B. M. Cash

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 13, 2011

ISIDRO CASTRO,
PETITIONER,
v.
B. M. CASH, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DISCHARGING ORDER TO SHOW CAUSE (DOC. 7)

ORDER GRANTING PETITIONER'S MOTION FOR EXTENSION OF TIME TO INFORM THE COURT CONCERNING CLAIMS RAISED AND EXHAUSTION OF STATE COURT REMEDIES (DOCS. 8, 5) DEADLINE FOR PETITIONER'S RESPONSE: FORTY-FIVE (45) DAYS

Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending before the Court is the petition, which was filed on March 16, 2011.

By order filed and served on Petitioner by mail on March 28, 2011, the Court directed Petitioner to inform the Court if he was attempting to raise a claim concerning the ineffective assistance of counsel and, if so, to show the Court that he had presented the claim to the California Supreme Court and thus had exhausted his state court remedies as to the claim. The order expressly warned Petitioner that failure to follow the order would result in dismissal of the petition pursuant to Local Rule 110.

When Petitioner failed to respond to the Court's order, the Court issued an order to Petitioner on May 17, 2011, to show cause why the case should not be dismissed for Petitioner's failure to respond. Petitioner has now filed a motion for an extension of time to respond. (Doc. 8.) Petitioner has explained that he was out to court. Thus, because Petitioner was out to court, the Court will discharge the order to show cause why the case should not be dismissed, and the Court will give Petitioner another opportunity to respond to the Court's order concerning his claim about his trial counsel.

The Court will grant Petitioner forty-five (45) days within which to write the Court and inform the Court whether or not he intended to allege in this case a claim that his trial counsel was ineffective because of sleeping through proceedings. If Petitioner wants to raise such a claim in this case, he should so state and should further inform the Court if he raised this claim before the California Supreme Court and thus exhausted his state court remedies as to the claim concerning counsel. If Petitioner did not raise his claim concerning counsel to the California Supreme Court, he should inform this Court that he did not do so. If Petitioner does not want to raise a claim concerning counsel in this case, he should inform the Court.

Accordingly, it is ORDERED that:

1. The order to show cause issued on May 17, 2011, is DISCHARGED; and

2. Petitioner is GRANTED until no later than forty-five (45) days from the date of service of this order to write the Court and inform the Court whether he is raising a claim concerning his trial counsel and, if so, whether he raised this claim to the California Supreme Court.

Petitioner is INFORMED that the failure to respond to this order will result in dismissal of the action.

IT IS SO ORDERED.

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20110613

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