Arias v. Lumpkin

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Joe Arias, Petitioner, v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

Civil Action No. H-21-3200

United States District Court, S.D. Texas

March 16, 2022

REPORT AND RECOMMENDATION

Peter Bray, United States Magistrate Judge

Joe Arias filed a form petition for a writ of habeas corpus under 28 U.S.C. § 2254. He alleges that he has been in custody for over thirty-five years on a conviction for which he was sentenced to only twenty years in prison. Arias alleges that his continued incarceration violates his Fifth, Sixth Eighth, and Fourteenth Amendment rights. Arias's petition makes only conclusory allegations and does not set forth specific claims for habeas relief. His petition is also similar to a previous § 2254 petition he filed in the Galveston Division of the Southern District of Texas in cause number 3:08-cv-0021.

On October 25, 2021, the court ordered Arias to file an amended petition on the standard form within thirty days. (D.E. 5.) The court instructed Arias to specifically articulate his claims for relief. Id. The court also instructed Arias to state whether he challenged the calculation of his sentence and to include every date on which the TDCJ released him on parole or mandatory supervised release and every date on which TDCJ revoked his release. Id. Finally, the court instructed Arias to explain how his claims are different from the claim he brought in Case No. 3:08-cv-0021 Id.

Arias did not comply with the court's order, and his time to do so has expired. A district court has inherent authority to dismiss a case for a litigant's failure to prosecute the action or his failure to comply with a court

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order. See Fed.R.Civ.P. 41(b); see e.g., Mutuba v. Halliburton Co., 949 F.Supp.2d 677, 687 (S.D. Tex. 2013). Arias may have failed to comply because he no longer resides at his last known address. (D.E. 6.) It is Arias's obligation to advise the court of his current address. LR 83.4 (S.D. Tex.). Arias has not provided the court with an updated address. Arias's failure to comply with the court order as directed or provide a current address demonstrates that he lacks diligence in prosecuting his habeas action. Therefore, dismissal without prejudice for want of prosecution is appropriate. See Fed.R.Civ.P. 41(b); Larson v. Scott 157 F.3d 1030, 1031 (5th Cir. 1998) (noting that a district court may sua sponte dismiss an action for failure to prosecute or to comply with any court order).

The court recommends that Arias's federal habeas corpus petition be dismissed without prejudice. The court further recommends that a certificate of appealability not issue.

The petitioner has fourteen...