(HC) Gonzalez v. Unknown

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA GERARDO GONZALEZ, No. 2:20-cv-01697 JAM GGH P 12 Petitioner, 13 v. ORDER UNKNOWN, 15 Respondent.

17 On December 11, 2010, the undersigned issued Findings and Recommendations recommending dismissal due to petitioner’s failure to respond to court orders or take any action to prosecute this case. ECF No. 10. Prior, petitioner had failed to file a petition for writ of habeas corpus and an application to proceed in forma pauperis in order to properly commence this action.

21 Petitioner has now filed a motion for extension of time to file his habeas petition and a writ of certiorari. ECF No. 11. Petitioner cites limited access to the prison law library due to the ongoing coronavirus pandemic. The court will afford petitioner an opportunity to file a petition for writ of habeas corpus and an application to proceed in forma pauperis in order to properly commence this action. Petitioner shall take care to comply with the court’s deadlines and orders or risk a recommendation that this action be dismissed for failure to prosecute and/or to follow a court //// //// order pursuant to Federal Rules of Civil Procedure 41(b). Petitioner is further cautioned that further extensions of time will not be permitted absent compelling circumstances.

3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The Findings and Recommendations issued December 11, 2020 (ECF No. 10), is VACATED; 6 2. Petitioner’s motion for an extension of time (ECF No. 11) is granted; 7 3. Petitioner shall file a petition for writ of habeas corpus and an application to proceed in forma pauperis within thirty days from the date of this order; and 9 4. Petitioner is further warned that failure to comply with this order will result in a recommendation that this action be dismissed without prejudice.1 Dated: January 11, 2021 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE Petitioner is further advised that the AEDPA statute of limitations is not tolled by this extension of time. Generally, the filing of a petition stops the running of the limitations period. Here, petitioner will not be entitled to equitable tolling based on this order granting petitioner’s request for an extension of time. See Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 2013).