-SKO (HC) Armas v. People Of California, No. 1:2011cv00772 - Document 9 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that the Petition be DISMISSED for Failure to Prosecute and Follow a Court Order re 1 Petition for Writ of Habeas Corpus, signed by Magistrate Judge Sheila K. Oberto on 7/29/2011. Referred to Judge O'Neill. Objections to F&R due within thirty (30) days. (Jessen, A)
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-SKO (HC) Armas v. People Of California Doc. 9 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 AMADO ARMAS, 11 Petitioner, 12 v. 13 PEOPLE OF CALIFORNIA, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:11-cv—00772-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR FAILURE TO PROSECUTE AND FOLLOW A COURT ORDER (Docs. 1, 3, 4, 6) FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO CLOSE THE CASE 16 17 Petitioner is a state prisoner proceeding pro se and in 18 forma pauperis with a petition for writ of habeas corpus pursuant 19 to 28 U.S.C. § 2254. 20 Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 21 302 and 304. 22 which was filed in this Court on May 13, 2011. The matter has been referred to the Pending before the Court is Petitioner’s petition, 23 I. 24 On May 17, 2011, the Court found that Petitioner had failed 25 to name a proper respondent, granted leave to Petitioner to file 26 an amendment to the petition to name a proper respondent within 27 thirty (30) days of service, and informed Petitioner that the 28 failure to amend the petition to name a proper respondent would Failure to Prosecute and Follow an Order of the Court 1 Dockets.Justia.com 1 2 result in dismissal of the petition for lack of jurisdiction. The order was served by mail on Petitioner on May 17, 2011. 3 Over thirty days have passed since the service of the Court’s 4 order, but Petitioner has not filed an amendment of the petition 5 to name a proper respondent or timely sought an extension of time 6 in which to do so. 7 Further, on June 27, 2011, the Court issued an order to 8 Petitioner to show cause within twenty-one days why the action 9 should not be dismissed for Petitioner’s failure to file a motion 10 to amend the petition to name a proper respondent. 11 show cause was served by mail on Petitioner on the same date. 12 Over twenty-one days have passed since the service of the order, 13 but Petitioner did not respond to the order to show cause. 14 The order to Local Rule 110 provides that “...failure of counsel or of a 15 party to comply with these Rules or with any order of the Court 16 may be grounds for the imposition by the Court of any and all 17 sanctions... within the inherent power of the Court.” 18 courts have the inherent power to control their dockets and “in 19 the exercise of that power, they may impose sanctions including, 20 where appropriate... dismissal of a case.” 21 Auth., 782 F.2d 829, 831 (9th Cir. 1986). 22 action, with prejudice, based on a party’s failure to prosecute 23 an action, failure to obey a court order, or failure to comply 24 with local rules. 25 (9th Cir. 1995) (dismissal for noncompliance with local rule); 26 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 27 (dismissal for failure to comply with an order requiring 28 amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 District Thompson v. Housing A court may dismiss an See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 2 1 (9th Cir. 1988) (dismissal for failure to comply with local rule 2 requiring pro se plaintiffs to keep court apprised of address); 3 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) 4 (dismissal for failure to comply with court order); Henderson v. 5 Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack 6 of prosecution and failure to comply with local rules). 7 In determining whether to dismiss an action for lack of 8 prosecution, failure to obey a court order, or failure to comply 9 with local rules, the court must consider several factors: (1) 10 the public’s interest in expeditious resolution of litigation; 11 (2) the court’s need to manage its docket; (3) the risk of 12 prejudice to the defendants; (4) the public policy favoring 13 disposition of cases on their merits; and (5) the availability of 14 less drastic alternatives. 15 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 16 1260-61; Ghazali, 46 F.3d at 53. Thompson, 782 F.2d at 831; Henderson, 17 In this case, the Court finds that the public’s interest in 18 expeditiously resolving this litigation and the Court’s interest 19 in managing the docket weigh in favor of dismissal, as the case 20 has been pending since May 2011. 21 prejudice to respondents, also weighs in favor of dismissal, 22 since a presumption of injury arises from the occurrence of 23 unreasonable delay in prosecuting an action. 24 West, 542 F.2d 522, 524 (9th Cir. 1976). 25 public policy favoring disposition of cases on their merits -- is 26 greatly outweighed by the factors in favor of dismissal discussed 27 herein. 28 to obey the court’s order will result in dismissal satisfies the The third factor, risk of Anderson v. Air The fourth factor -- Finally, a court’s warning to a party that his failure 3 1 “consideration of alternatives” requirement. 2 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 3 1424. 4 amendment expressly informed Petitioner that a failure to amend 5 the petition and name a proper respondent would result in 6 dismissal of the petition for lack of jurisdiction. 7 4:2-4.) 8 dismissal would result from his noncompliance with the Court’s 9 order. 10 Ferdik v. Bonzelet, The Court’s order directing Petitioner to file an (Doc. 4, Thus, Petitioner received adequate warning that In summary, consideration of the pertinent factors results 11 in a conclusion that the petition should be dismissed for 12 Petitioner’s failure to prosecute the action and to follow an 13 order of the Court. 14 II. 15 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 16 appealability, an appeal may not be taken to the Court of Appeals 17 from the final order in a habeas proceeding in which the 18 detention complained of arises out of process issued by a state 19 court. 20 U.S. 322, 336 (2003). 21 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue only if the 22 applicant makes a substantial showing of the denial of a 23 constitutional right. 24 petitioner must show that reasonable jurists could debate whether 25 the petition should have been resolved in a different manner or 26 that the issues presented were adequate to deserve encouragement 27 to proceed further. 28 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 4 A 1 certificate should issue if the Petitioner shows that jurists of 2 reason would find it debatable whether the petition states a 3 valid claim of the denial of a constitutional right and that 4 jurists of reason would find it debatable whether the district 5 court was correct in any procedural ruling. 6 529 U.S. 473, 483-84 (2000). 7 Slack v. McDaniel, In determining this issue, a court conducts an overview of 8 the claims in the habeas petition, generally assesses their 9 merits, and determines whether the resolution was debatable among 10 jurists of reason. 11 more than an absence of frivolity or the existence of mere good 12 faith; however, it is not necessary for an applicant to show that 13 the appeal will succeed. Id. It is necessary for an applicant to show Miller-El v. Cockrell, 537 U.S. at 338. 14 A district court must issue or deny a certificate of 15 appealability when it enters a final order adverse to the 16 applicant. 17 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 18 debate whether the petition should have been resolved in a 19 different manner. 20 of the denial of a constitutional right. 21 22 Petitioner has not made a substantial showing Accordingly, it will be recommended that the Court decline to issue a certificate of appealability. 23 III. 24 Accordingly, it is RECOMMENDED that: 25 1) Recommendations The petition be DISMISSED pursuant to Local Rule 110 for 26 Petitioner’s failure to comply with the Court’s order and to 27 prosecute this action; and 28 2) The Court DECLINE to issue a certificate of 5 1 appealability; and 2 3) 3 These findings and recommendations are submitted to the 4 United States District Court Judge assigned to the case, pursuant 5 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 6 the Local Rules of Practice for the United States District Court, 7 Eastern District of California. 8 being served with a copy, any party may file written objections 9 with the Court and serve a copy on all parties. The Clerk be DIRECTED to close the action. Within thirty (30) days after Such a document 10 should be captioned “Objections to Magistrate Judge’s Findings 11 and Recommendations.” 12 and filed within fourteen (14) days (plus three (3) days if 13 served by mail) after service of the objections. 14 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 15 636 (b)(1)(C). 16 objections within the specified time may waive the right to 17 appeal the District Court’s order. 18 1153 (9th Cir. 1991). Replies to the objections shall be served The Court will The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 19 20 IT IS SO ORDERED. 21 Dated: ie14hj July 29, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 6
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