Harold Vincent Franklin v. Connie Gipson
Filing
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ORDER DISMISSING HABEAS PETITION AS SUCCESSIVE AND FOR FAILURE TO PROSECUTE AND FOLLOW COURT ORDERS by Judge Manuel L. Real. *See Order for details.* Case Terminated. Made JS-6. (es)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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HAROLD VINCENT FRANKLIN,
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Petitioner,
v.
CONNIE GIPSON, Warden,
Respondent.
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No. CV 15-388-R (PLA)
ORDER DISMISSING HABEAS PETITION
AS SUCCESSIVE AND FOR FAILURE TO
PROSECUTE AND FOLLOW COURT
ORDERS
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I.
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BACKGROUND
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On January 20, 2015, petitioner filed a Petition for Writ of Habeas Corpus by a Person in
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State Custody pursuant to 28 U.S.C. § 2254 (“Petition” or “Pet.”) in the United States District Court
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for the Central District of California. In the Petition, petitioner challenges his December 23, 2008,
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conviction in the Los Angeles County Superior Court, case number YA072757, for second degree
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robbery, making criminal threats, and felony assault with great bodily injury. (Pet. at 2).
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On June 8, 2011, petitioner previously filed a habeas petition in this Court, in Case No. CV
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11-5386-R (PLA), also challenging his 2008 conviction in Los Angeles County Superior Court
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Case number YA072757 (“2011 Petition”). The 2011 Petition was dismissed on the merits with
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prejudice pursuant to the Judgment entered on June 4, 2013.
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On January 26, 2015, the Magistrate Judge issued an order requiring petitioner to show
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cause, on or before February 16, 2015, why the Petition should not be dismissed as successive.
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(Dkt. No. 3). Petitioner was advised that his failure to timely file a response to the Order to Show
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Cause, or failure to show that he has obtained authorization to file a successive petition, “will
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result in the instant Petition being summarily dismissed without prejudice.” (Dkt. No. 3 at
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3-4).
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To date, petitioner has not filed a response to the January 26, 2015, Order to Show Cause,
and his time to do so has passed.
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II.
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DISCUSSION
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A.
SUCCESSIVE PETITION
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A federal habeas petition is successive if it raises claims that were or could have been
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adjudicated on the merits in a previous petition. Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir.
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2001) (per curiam) (citation omitted). The Antiterrorism and Effective Death Penalty Act of 1996
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(“AEDPA”) provides that a claim presented in a second or successive federal habeas petition that
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was not presented in a prior petition shall be dismissed unless:
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(A) the applicant shows that the claim relies on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously
through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a
whole, would be sufficient to establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found the applicant guilty of
the underlying offense.
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28 U.S.C. § 2244(b)(2).
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Furthermore, “[b]efore a second or successive application permitted by this section is filed in
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the district court, the applicant shall move in the appropriate court of appeals for an order authorizing
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the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).
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In his 2011 Petition, petitioner raised the following grounds for relief: (1) the trial court
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committed instructional error by failing to instruct on the lesser included offense of petty theft and on
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the “claim of right” defense, and by instructing the jury with CALCRIM No. 362; (2) petitioner’s
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constitutional rights were violated by the intentional suppression of evidence; and (3) petitioner
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received ineffective assistance of counsel. (Case No. CV 11-5386-R (PLA), Dkt. No. 65 (Report and
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Recommendation, issued on May 14, 2013, at 3-4)). As mentioned above, the action was dismissed
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on the merits and with prejudice. (Case No. CV 11-5386-R (PLA), Dkt. Nos. 70, 71 (Order Adopting
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Magistrate Judge’s Final Report and Recommendation and Judgment, both entered on June 4,
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2013)). Petitioner’s request for a certificate of appealability was denied. (Case No. CV 11-5386-R
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(PLA), Dkt. No. 72). His request to the Ninth Circuit for a certificate of appealability was denied on
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October 27, 2014. (Case No. CV 11-5386-R (PLA), Dkt. No. 80).
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In the instant Petition, petitioner challenges the same conviction that he challenged in his 2011
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Petition, setting forth the following grounds for relief: (1) petitioner’s constitutional rights were violated
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because insufficient evidence was submitted at trial to support petitioner’s convictions for robbery and
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making criminal threats: (2) petitioner’s Sixth and Fourteenth Amendment rights were violated when
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the prosecutor knowingly used perjured testimony and false evidence to support the convictions; and
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(3) cumulative error deprived petitioner of his due process rights. (Pet. at 5, 6).
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Even though petitioner is seeking to present new claims in the instant Petition, and even if the
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claims satisfied the AEDPA standards for filing a successive petition -- which they do not appear to
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do -- he nevertheless is required to seek authorization from the Ninth Circuit before filing a successive
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petition. 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 152-53, 127 S. Ct. 793, 166
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L. Ed. 2d 628 (2007) (AEDPA requires petitioner to receive authorization from the Court of Appeals
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before filing a second habeas petition). There is no indication that petitioner has obtained such
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permission from the Ninth Circuit. It therefore appears that the Court is without jurisdiction to
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entertain the current Petition under 28 U.S.C. § 2244(b). See Burton, 549 U.S. at 153; Cooper, 274
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F.3d at 1274 (“‘When the AEDPA is in play, the district court may not, in the absence of proper
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authorization from the court of appeals, consider a second or successive habeas application.’”).
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In light of the foregoing, the Court finds that it is appropriate to dismiss the Petition without
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prejudice as successive.
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B.
FAILURE TO PROSECUTE AND FOLLOW COURT ORDERS
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It is well established that a district court has authority to dismiss a petitioner’s action because
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of his or her failure to prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v.
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Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962) (holding that a
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court’s authority to dismiss for lack of prosecution is necessary to prevent undue delays in the
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disposition of pending cases and to avoid congestion in the calendars of the district courts); Ferdik
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v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (holding that a district court may dismiss an action
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for failure to comply with any order of the court).
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In determining whether to dismiss this action due to petitioner’s failure to prosecute or comply
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with court orders the Court must consider 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 of prejudice
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to the respondents; (4) the public policy favoring disposition of cases on their merits[;] and (5) the
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availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (per curiam)
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(internal quotation marks and citation omitted); see also In re Eisen, 31 F.3d 1447, 1451 (9th Cir.
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1994) (failure to prosecute); Ferdik, 963 F.2d at 1260-61 (failure to comply with court orders).
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The first two factors -- the public’s interest in expeditious resolution of litigation and the Court’s
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need to manage its docket -- weigh in favor of dismissal. Petitioner’s failure to file a response to the
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Order to Show Cause hinders the Court’s ability to move this case toward disposition and indicates
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that petitioner does not intend to litigate this action diligently.
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The third factor -- prejudice to respondent -- weighs in favor of dismissal. A rebuttable
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presumption of prejudice to respondents arises when a petitioner unreasonably delays prosecution
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of an action. Eisen, 31 F.3d at 1452-53. Nothing suggests that such a presumption is unwarranted
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in this case.
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The fourth factor -- public policy in favor of deciding cases on their merits -- weighs against
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dismissal. However, it is petitioner’s responsibility to move his case toward a disposition at a
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reasonable pace and to avoid dilatory and evasive tactics. See Morris v. Morgan Stanley Co., 942
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F.2d 648, 652 (9th Cir. 1991). By failing to file a response to the Order to Show Cause as ordered
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by the Magistrate Judge, petitioner has not discharged this responsibility. In these circumstances,
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the public policy favoring resolution of disputes on the merits does not outweigh petitioner’s failure
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to comply with court orders.
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The fifth factor -- availability of less drastic sanctions -- weighs in favor of dismissal. The
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Magistrate Judge attempted to avoid dismissal when he issued the January 26, 2015, Order to Show
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Cause giving petitioner an opportunity to show cause why this case should not be dismissed as
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successive. Nonetheless, to date, petitioner has failed to file a response to the Order to Show Cause
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as required by the Order.
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Taking all of the above factors into account, dismissal of the Petition for failure to prosecute
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and follow court orders, is appropriate. Such a dismissal, however, should not be entered unless
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petitioner has been notified that dismissal is imminent. See West Coast Theater Corp. v. City of
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Portland, 897 F.2d 1519, 1523 (9th Cir. 1990). In this case, petitioner was cautioned about the
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possibility of dismissal in the January 26, 2015, Order to Show Cause. (Dkt. No. 3 at 3-4 (“Failure
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to respond by February 16, 2015, will result in the instant Petition being summarily dismissed
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without prejudice.”).
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In light of the foregoing, the Court finds that it is also appropriate to dismiss the Petition without
prejudice for failure to prosecute and follow court orders.
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III.
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ORDER
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IT IS THEREFORE ORDERED that the Petition is dismissed without prejudice as successive,
and for failure to prosecute and follow court orders.
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DATED: February 26, 2015
HONORABLE MANUEL L. REAL
UNITED STATES DISTRICT JUDGE
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