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Demetrius Gater v. A. Hedgpeth

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 23, 2011

DEMETRIUS GATER,
PETITIONER,
v.
A. HEDGPETH, WARDEN, ET AL.,
RESPONDENTS.

The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER:

(1) CONSTRUING NOTICE OF INQUIRY AS REQUEST TO REOPEN PROCEEDINGS; (2) DENYING REQUEST TO REOPEN PROCEEDINGS; AND (3) DIRECTING CLERK TO ENTER PETITION WITHOUT PREJUDICE FINAL JUDGMENT DISMISSING

On May 3, 2010, Petitioner, a state prisoner proceeding pro se, submitted a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Petitioner neither paid the filing fee nor filed a motion to proceed in forma pauperis.

On May 13, 2010, the Court dismissed the Petition because Petitioner had failed to satisfy the filing fee requirement. (Doc. No. 2.) Petitioner was informed that if he wished to proceed with this matter he had to either pay the filing fee or file a motion to proceed in forma pauperis on or before July 12, 2010. (Id. at 5.) Petitioner was also notified that, because he had alleged exhaustion of state court remedies as to some but not all claims in the Petition, it was subject to dismissal as a "mixed" petition. (Id.) Petitioner was notified of his options to avoid a future dismissal on that basis in the event he satisfied the filing fee requirem ent and had the case reopened. (Id.) Petitioner was informed that if he wished to proceed with this action he was required, in addition to satisfying the filing fee requirement, to notify the Court of which option he chose on or before July 12, 2010. (Id. at 2-5.)

Petitioner filed a Supplemental Memorandum Regarding Exhaustion on July 1, 2010, in which he attempted to demonstrate complete exhaustion by submitting selected pages from the state court decisions denying his claim s. (Doc. No. 4.) Petitioner did not, howe ver, pay the filing fee or file a motion to proceed in forma pauperis, and has still not done so. Thus, this case has remained dismissed.

Petitioner has now filed a Notice to Inquire About Petitioner's Federal Habeas Corpus and Notice of Change of Address, indicating that although he has complied with the Court's May 13, 2010, Order by submitting documentation supporting exhaustion, he has not heard back from the Court regarding his case. (Doc. No. 5.) The Court will construe Petitioner's Notice of Inquiry as a Request to Reopen the case.

Petitioner's request to reopen the case is DENIED. The deadline for Petitioner to satisfy the filing fee requirement expired over a year ago. It is clear that Petitioner received the Court's May 13, 2010, Order because he responded to the options notification portion of that Order. Yet, Petitioner has made no attempt to satisfy the filing fee requirement and has waited over a year before inquiring about the status of his case. This m atter remains DISMISSED. The dismissal is without prejudice to Petitioner to present his claims in a new habeas petition which will be assigned a new civil case number. The Clerk of Court shall enter a final judgment of dismissal without prejudice in this case.

IT IS SO ORDERED.

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20110823

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