Rodriguez v. USA

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
SAUL ALEJANDRO RODRIGUEZ, 	)
)
Petitioner, 	)
)
v. 	) 	Case No. CIV-26-00161-JD
)
USA, 	)
)
Respondent. 	)
ORDER
Before the Court is a Report and Recommendation issued by United States
Magistrate Judge Shon T. Erwin on February 27, 2026. [Doc. No. 7]. Petitioner filed a
Petition for Writ of Habeas Corpus on January 30, 2026. [Doc. No. 1]. On February 11,
2026, Judge Erwin issued an Order notifying Petitioner that (1) his petition was not on
the proper form; (2) he must either pay the $5.00 filing fee or be granted leave to proceed
without prepayment of fees; and (3) he must name a proper respondent. [Doc. No. 4]. The
Petitioner was ordered to cure these deficiencies by March 2, 2026. Id. at 2. Petitioner
was further advised that failure to comply with the Order may result in the dismissal of
the action without prejudice. Id.
Petitioner did not respond to the Court’s Order and thus did not cure the
deficiencies. Judge Erwin then issued his Report and Recommendation, recommending
this action be dismissed without prejudice for Petitioner’s failure to comply with the
Court’s Order and rules. [Doc. No. 7].1
1 As noted in the Report and Recommendation, the mail from the Court has been
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Judge Erwin advised Petitioner of his right to object to the Report and
Recommendation by March 16, 2026, and warned Petitioner that failure to file a timely
objection waives the right to appellate review of the factual and legal issues in the Report
and Recommendation. [Doc. No. 7 at 3].
Petitioner did not file an objection to the Report and Recommendation. Therefore,
Petitioner has waived any objection to the Report and Recommendation recommending
dismissal. See Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (holding that
the plaintiffs “waived their right to appeal the magistrate’s ruling” because they did not
file any objections); see also United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th
Cir. 1996) (“[A] party’s objections to the magistrate judge’s report and recommendation
must be both timely and specific to preserve an issue for de novo review by the district
court or for appellate review.”). The Court does not view the interests of justice as
requiring an exception to the firm waiver rule here. See Morales-Fernandez v. INS, 418
F.3d 1116, 1119–20 (10th Cir. 2005).
Alternatively, although the Court is not required to conduct a de novo review of
the Report and Recommendation unless a party timely objects, see 28 U.S.C. § 636(b)(1),
the Court has conducted such a review and concludes that dismissal without prejudice is
returned as undeliverable. See [Doc. Nos. 5, 6, 8]; see also [Doc. No. 7 at 2]. However, it
is the Petitioner’s burden to update his address with the Court, and papers sent by the
Court “will be deemed delivered if sent to the last known address given to the Court.”
LCvR5.4; see Fed. R. Civ. P. 5(b)(2)(C); see also Theede v. U.S. Dep’t of Labor, 172
F.3d 1262, 1267 (10th Cir. 1999) (“The parties are far better situated to know of any
errors in their address information, thus, they bear the burden of filing notice of a change
of address . . . . The fact that [the petitioner] is acting pro se does not eliminate this
burden.”).
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appropriate for Petitioner’s failure to prosecute and failure to comply with the Court’s
local rules and orders, including Judge Erwin’s order to cure deficiencies. See Fed. R.
Civ. P. 41(b); Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003) (citing Link v.
Wabash R.R. Co., 370 U.S. 626, 630–31 (1962)). “The ‘authority of a court to dismiss
sua sponte for lack of prosecution has generally been considered an inherent power,
governed not by rule or statute but by the control necessarily vested in courts to manage
their own affairs so as to achieve the orderly and expeditious disposition of cases.’ . . .
[D]ismissal is an appropriate disposition against a party who disregards court orders and
fails to proceed as required by court rules.” United States ex rel. Jimenez v. Health Net,
Inc., 400 F.3d 853, 855 (10th Cir. 2005) (quoting Link, 370 U.S. at 630–31; citing Nat’l
Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642–43 (1976)).
Accordingly, the Court ACCEPTS the Report and Recommendation [Doc. No. 7]
and DISMISSES this action WITHOUT PREJUDICE.2 A separate judgment will follow.
IT IS SO ORDERED this 18th day of March 2026.
2 Because the firm waiver rule applies, Petitioner has waived appellate review so
no certificate of appealability is required. Alternatively, the Tenth Circuit has stated that a
certificate of appealability “is not required in order to appeal a final order in a proceeding
under 28 U.S.C. § 2241” for a federal inmate. McIntosh v. U.S. Parole Comm’n, 115 F.3d
809, 810 n.1 (10th Cir. 1997) (citing Bradshaw v. Story, 86 F.3d 164, 165–66 (10th Cir.
1996)).
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