Escobedo-Sanchez v. USA

Filing 14

ORDER: Magistrate Judge Burns' Report and Recommendation 12 is accepted and adopted by the Court. The Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (CV-16-08307-PCT-SPL, Doc. 1 ; Doc. 26, CR-15-08221-PCT-SPL) is denied. This case is dismissed with prejudice. A certificate of appealability and leave to proceed in forma on appeal are denied because Petitioner has not made a substantial showing of the denial of a constituti onal right. The Clerk of Court shall file this Order in the underlying related criminal action, Case No. CR-15-08221-PCT-SPL. The Clerk of Court shall enter judgment accordingly and terminate this action. Signed by Judge Steven P Logan on 12/08/2017. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Moises Alfredo Escobedo-Sanchez,
Petitioner,

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USA,

(No. CR-15-08221-PCT-SPL)

v.

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No. CV-16-08307-PCT-SPL

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ORDER
Respondent.

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On December 27, 2016, Movant Moises Alfredo Escobedo-Sanchez, who was

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then confined in Federal Correctional Institution in Phoenix, Arizona, filed a pro se

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Motion Under § 2255 to Vacate, Set Aside, or Correct Sentence. On October 31, 2017,

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Magistrate Judge Michelle H. Burns entered a Report and Recommendation

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recommending that Movant’s motion be denied and dismissed with prejudice.

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November 20, 2017, the Report and Recommendation was returned to the Court as

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undeliverable.1 Movant has not provided the Court with an updated address.

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On

Rule 3.5 of the Local Rules of Civil Procedure requires a § 2255 movant to

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comply with the instructions attached to the court-approved § 2255 form.

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instructions state: “You must immediately notify the Court . . . in writing of any change

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in your mailing address. Failure to notify the Court of any change in your mailing

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address may result in the dismissal of your case.” Instructions for Filing a Motion to

Those

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Bureau of Prisons records confirm that Movant was released from custody on July
11, 2017. See https://www.bop.gov/inmateloc/ (search by number for “17771-081”) (last
visited Dec. 4, 2017).

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Vacate, Set Aside, or Correct a Sentence By a Person in Federal Custody (Motion Under

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28 U.S.C. § 2255) in the United States District Court for the District of Arizona at 1. In

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addition, Local Rule of Civil Procedure 83.3(d) requires parties to submit a notice of

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change of address within seven days.

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Movant has the general duty to prosecute this case. Cf. Fidelity Phila. Trust Co. v.

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Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978). In this regard, it is the duty

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of a movant who has filed a pro se action to keep the Court apprised of his current

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address and to comply with the Court’s orders in a timely fashion. This Court does not

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have an affirmative obligation to locate Movant. “A party, not the district court, bears the

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burden of keeping the court apprised of any changes in his mailing address.” Carey v.

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King, 856 F.2d 1439, 1441 (9th Cir. 1988). Movant’s failure to keep the Court informed

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of his new address constitutes failure to prosecute.

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Rule 41(b) of the Federal Rules of Civil Procedure provides that “if the plaintiff

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fails to prosecute or to comply with these rules or a court order, a defendant may move to

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dismiss the action or any claim against it.” In Link v. Wabash Railroad Co., 370 U.S.

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626, 629-31 (1962), the Supreme Court recognized that a federal district court has the

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inherent power to dismiss a case sua sponte for failure to prosecute, even though the

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language of Rule 41(b) of the Federal Rules of Civil Procedure appears to require a

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motion from a party. Moreover, in appropriate circumstances, the Court may dismiss a

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pleading for failure to prosecute even without notice or hearing. Id. at 633.

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In determining whether Movant’s failure to prosecute warrants dismissal of the

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case, the Court must weigh the following five factors: “(1) the public’s interest in

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expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk

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of prejudice to the [respondents]; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic sanctions.” Carey, 856 F.2d at 1440

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(quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “The first two of

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these factors favor the imposition of sanctions in most cases, while the fourth factor cuts

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against a default or dismissal sanction. Thus the key factors are prejudice and availability

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of lesser sanctions.” Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990).

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Here, the first, second, and third factors favor dismissal of this case. Movant’s

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failure to keep the Court informed of his address prevents the case from proceeding. The

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fourth factor, as always, weighs against dismissal. The fifth factor requires the Court to

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consider whether a less drastic alternative is available.

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address, however, certain alternatives are bound to be futile. Here, as in Carey, “[a]n

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order to show cause why dismissal is not warranted or an order imposing sanctions would

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only find itself taking a round trip tour through the United States mail.” 856 F.2d at

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Without Movant’s current

1441.

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Additionally, because the R&R was returned in the mail, Movant has not filed any

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objections to it. This relieves the Court of its obligation to review the R&R. See Reyna-

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Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1)]

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does not… require any review at all… of any issue that is not the subject of an

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objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any

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part of the magistrate judge’s disposition that has been properly objected to.”). The Court

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has nonetheless reviewed the R&R and finds that it is well-taken. The Court will adopt

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the R&R and deny the Motion. See 28 U.S.C. § 636(b)(1) (stating that the district court

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“may accept, reject, or modify, in whole or in part, the findings or recommendations

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made by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The district judge may accept, reject,

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or modify the recommended disposition; receive further evidence; or return the matter to

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the magistrate judge with instructions.”).

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Accordingly,

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IT IS ORDERED:

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1. That Magistrate Judge Burns’ Report and Recommendation (Doc. 12) is

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accepted and adopted by the Court;

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2. That the Motion to Vacate, Set Aside, or Correct Sentence by a Person in

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Federal Custody pursuant to 28 U.S.C. § 2255 (CV-16-08307-PCT-SPL, Doc. 1; Doc. 26,

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CR-15-08221-PCT-SPL) is denied;

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3. That this case is dismissed with prejudice;

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4. That a certificate of appealability and leave to proceed in forma pauperis on

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appeal are denied because Petitioner has not made a substantial showing of the denial of

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a constitutional right;

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5. That the Clerk of Court shall file this Order in the underlying related criminal
action, Case No. CR-15-08221-PCT-SPL; and

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6. That the Clerk of Court shall enter judgment accordingly and terminate this
action.
Dated this 8th day of December, 2017.

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Honorable Steven P. Logan
United States District Judge

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