IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 17, 2012
KENNETH E. CAPOGRECO, PETITIONER,
CALIFORNIA DEPARTMENT OF CORRECTIONS, RESPONDENT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Petitioner is a state prisoner proceeding without counsel. On October 15, 2012, petitioner filed a motion to issue the writ of habeas corpus based on respondent's alleged failure to file a response to the petition. Petitioner's motion was presented to prison officials for mailing on October 11, 2012. However, on October 10, 2012, respondent filed a motion to dismiss, which was served by mail on petitioner on October 10, 2012. Therefore, respondent's motion crossed in the mail with petitioner's motion. Because respondent has filed a motion to dismiss, petitioner's motion is without merit, and is denied.
Petitioner is reminded of his obligation to file an opposition to the motion to dismiss within twenty-one days. L.R. 230(l). "Failure of the responding party to file written opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion . . . ." Id.
Accordingly, IT IS HEREBY ORDERED that petitioner's October 15, 2012 motion (dkt. no. 12) is denied.
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