Palma v. Allison
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition for Petitioner's Failure to Comply With an Order of the Court and to Prosecute the Case 9 & 1 ; FINDINGS and RECOMMENDATIONS to Decline to Issue a Certificate of Appealability and to Direct the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 6/29/2011, referred to Judge Wanger. Objections to F&R due by 8/1/2011. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LEONCIO PALMA,
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Petitioner,
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v.
KATTY ALLISON,
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Respondent.
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1:10-cv—02120-OWW-SKO-HC
FINDINGS AND RECOMMENDATIONS TO
DISMISS THE PETITION FOR
PETITIONER’S FAILURE TO COMPLY
WITH AN ORDER OF THE COURT AND TO
PROSECUTE THE CASE (DOCS. 9, 1)
FINDINGS AND RECOMMENDATIONS TO
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY AND TO DIRECT THE
CLERK TO CLOSE THE CASE
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Petitioner is a state prisoner proceeding in forma pauperis
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and pro se with a petition for writ of habeas corpus pursuant to
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28 U.S.C. § 2254.
The matter has been referred to the Magistrate
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Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and
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304.
Pending before the Court is the petition, which was filed
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on November 15, 2010.
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I.
Failure to Prosecute and Follow an Order of the Court
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In view of the decision in Swarthout v. Cooke, 562 U.S. –,
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131 S.Ct. 859, 861-62 (2011), the Court reconsidered its earlier
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order dismissing the petition with leave to amend, and on May 10,
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2011, the Court again dismissed the petition with leave to file a
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first amended petition (FAP) within thirty days of service of the
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order.
The order was served on Petitioner by mail on the same
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date.
Although thirty (30) days have passed, Petitioner has not
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filed a FAP or requested an extension of time within which to
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file one.
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Local Rule 110 provides that “...failure of counsel or of a
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party to comply with these Rules or with any order of the Court
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may be grounds for the imposition by the Court of any and all
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sanctions... within the inherent power of the Court.”
District
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courts have the inherent power to control their dockets and “in
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the exercise of that power, they may impose sanctions including,
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where appropriate... dismissal of a case.”
Thompson v. Housing
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Auth., 782 F.2d 829, 831 (9th Cir. 1986).
A court may dismiss an
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action, with prejudice, based on a party’s failure to prosecute
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an action, failure to obey a court order, or failure to comply
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with local rules.
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(9th Cir. 1995) (dismissal for noncompliance with local rule);
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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)
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(dismissal for failure to comply with an order requiring
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amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41
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(9th Cir. 1988) (dismissal for failure to comply with local rule
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requiring pro se plaintiffs to keep court apprised of address);
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Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)
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(dismissal for failure to comply with court order); Henderson v.
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Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack
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of prosecution and failure to comply with local rules).
See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54
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In determining whether to dismiss an action for lack of
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prosecution, failure to obey a court order, or failure to comply
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with local rules, the court must consider several factors: (1)
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the public’s interest in expeditious resolution of litigation;
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(2) the court’s need to manage its docket; (3) the risk of
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prejudice to the defendants; (4) the public policy favoring
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disposition of cases on their merits; and (5) the availability of
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less drastic alternatives.
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779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at
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1260-61; Ghazali, 46 F.3d at 53.
Thompson, 782 F.2d at 831; Henderson,
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In this case, the Court finds that the public’s interest in
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expeditiously resolving this litigation and the Court’s interest
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in managing the docket weigh in favor of dismissal, as the case
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has been pending since November 2010.
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prejudice to respondents, also weighs in favor of dismissal,
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since a presumption of injury arises from the occurrence of
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unreasonable delay in prosecuting an action.
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West, 542 F.2d 522, 524 (9th Cir. 1976).
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public policy favoring disposition of cases on their merits -- is
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greatly outweighed by the factors in favor of dismissal discussed
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herein.
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to obey the court’s order will result in dismissal satisfies the
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“consideration of alternatives” requirement.
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963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at
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1424.
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amendment expressly informed Petitioner that a failure to file a
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petition in compliance with the order within the allotted time
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would result in a recommendation that the petition be dismissed
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and the action be terminated.
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received adequate warning that dismissal would result from his
The third factor, risk of
Anderson v. Air
The fourth factor --
Finally, a court’s warning to a party that his failure
Ferdik v. Bonzelet,
The Court’s order directing Petitioner to file an
(Doc. 9, 7.)
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Thus, Petitioner
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noncompliance with the Court’s order.
Accordingly, it will be recommended that the petition be
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dismissed for Petitioner’s failure to comply with the order of
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the Court.
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II.
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Unless a circuit justice or judge issues a certificate of
Certificate of Appealability
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appealability, an appeal may not be taken to the Court of Appeals
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from the final order in a habeas proceeding in which the
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detention complained of arises out of process issued by a state
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court.
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U.S. 322, 336 (2003).
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28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
A certificate of appealability may issue only if the
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applicant makes a substantial showing of the denial of a
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constitutional right.
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petitioner must show that reasonable jurists could debate whether
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the petition should have been resolved in a different manner or
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that the issues presented were adequate to deserve encouragement
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to proceed further.
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(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
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certificate should issue if the Petitioner shows that jurists of
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reason would find it debatable whether the petition states a
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valid claim of the denial of a constitutional right and that
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jurists of reason would find it debatable whether the district
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court was correct in any procedural ruling.
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529 U.S. 473, 483-84 (2000).
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§ 2253(c)(2).
Under this standard, a
Miller-El v. Cockrell, 537 U.S. at 336
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Slack v. McDaniel,
In determining this issue, a court conducts an overview of
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the claims in the habeas petition, generally assesses their
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merits, and determines whether the resolution was debatable among
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jurists of reason or wrong.
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applicant to show more than an absence of frivolity or the
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existence of mere good faith; however, it is not necessary for an
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applicant to show that the appeal will succeed.
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Cockrell, 537 U.S. at 338.
Id.
It is necessary for an
Miller-El v.
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A district court must issue or deny a certificate of
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appealability when it enters a final order adverse to the
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applicant.
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Rule 11(a) of the Rules Governing Section 2254 Cases.
Here, it does not appear that reasonable jurists could
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debate whether the petition should have been resolved in a
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different manner.
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of the denial of a constitutional right.
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Petitioner has not made a substantial showing
Accordingly, it will be recommended that the Court decline
to issue a certificate of appealability.
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III.
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Accordingly, it is RECOMMENDED that:
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1)
Recommendations
The petition be DISMISSED for pursuant to Local Rule 110
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for Petitioner’s failure to comply with the Court’s order and to
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file a first amended petition; and
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2) The Court DECLINE to issue a certificate of
appealability; and
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3)
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These findings and recommendations are submitted to the
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United States District Court Judge assigned to the case, pursuant
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to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
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the Local Rules of Practice for the United States District Court,
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Eastern District of California.
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being served with a copy, any party may file written objections
The Clerk be DIRECTED to close the action.
Within thirty (30) days after
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with the Court and serve a copy on all parties.
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should be captioned “Objections to Magistrate Judge’s Findings
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and Recommendations.”
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and filed within fourteen (14) days (plus three (3) days if
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served by mail) after service of the objections.
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then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §
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636 (b)(1)(C).
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objections within the specified time may waive the right to
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appeal the District Court’s order.
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Such a document
Replies to the objections shall be served
The Court will
The parties are advised that failure to file
Martinez v. Ylst, 951 F.2d
1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
ie14hj
June 29, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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