United States District Court, D. Utah
MEMORANDUM DECISION & DISMISSAL ORDER
CAMPBELL, UNITED STATES DISTRICT COURT JUDGE
March 28, 2014 Petitioner sentenced to fifteen-years-to-life
in state court. (Doc. No. 1.)
January 22, 2016 Conviction affirmed on direct appeal.
State v. Gibson, 2016 UT App 15, cert.
denied, 379 P.3d 1181 (Utah May 18, 2016).
July 3, 2017 Petitioner filed federal habeas-corpus petition.
(Doc. No. 1.)
April 3, 2018 The Court ordered Respondent to answer the
petition and file a proposed order. (Doc. No. 6.) The Order
stated, “Within thirty days after the answer and
proposed order are filed by Respondent(s), Petitioner
must file any objections.” (Id.
July 18, 2018 Respondent answered by filing a Motion to
Dismiss and a proposed order on the motion. (Doc. No. 13.)
August 9, 2018 The Court granted Petitioner's motion for
extension until September 17, 2018 to file objections to the
Motion to Dismiss. (Doc. No. 15.)
September 19, 2018 Petitioner moved for a second time
extension, until October 17, 2018, to file his objections.
(Doc. No. 16.)
November 14, 2018 The Court ordered Petitioner to within
thirty days show cause why this action should not be
dismissed for failure to prosecute and file objections. (Doc.
has not contacted the Court since September 19, 2018 (nearly
five months ago).
Rule of Civil Procedure 41(b) allows involuntary dismissal of
an action “[i]f the [petitioner] fails to prosecute or
to comply with . . . a court order.” Fed.R.Civ.P.
41(b). This Court may dismiss actions sua sponte for
failure to prosecute. Olsen v. Mapes, 333 F.3d 1199,
1204 n.3 (10th Cir. 2003) (“Although the language of
Rule 41(b) requires that the [respondent] file a motion to
dismiss, the Rule has long been interpreted to permit courts
to dismiss actions sua sponte for a
[petitioner's] failure to prosecute or comply with . . .
court orders.”); see also Link v. Wabash R.R.
Co., 370 U.S. 626, 630 (stating court has inherent
authority to clear “calendar of cases that have
remained dormant because of the inaction or dilatoriness of
the parties seeking relief”); Bills v. United
States, 857 F.2d 1404, 1405 (10th Cir. 1988)
(“Dismissal for failure to prosecute is a recognized
standard operating procedure in order to clear the deadwood
from the courts' calendars where there has been prolonged
and unexcused delay.”).
“a district court may, without abusing its discretion,
[dismiss a case without prejudice] without attention to any
particular procedures.” Nasious v. Two Unknown
B.I.C.E. Agents at Araphoe County Justice Ctr., 492 F.3d
1158, 1162 (10th Cir. 2007). But a dismissal without
prejudice is effectively a dismissal with prejudice if the
period of limitation has expired on dismissed claims.
Gocolay v. N.M. Fed. Sav. & Loan Ass'n, 968
F.2d 1017, 1021 (10th Cir. 1992). Thus, the Court must