Robles v. State of California

Filing 16

ORDER Dismissing the Petition for Petitioner's Failure to Follow a Court Order and Prosecute the Case 1 , 9 , 15 ; ORDER Declining to Issue a Certificate of Appealability; ORDER Directing the Clerk to Close the Case, signed by Magistrate Judge Sheila K. Oberto on 6/14/11. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GILBERT ROBLES, JR.,
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Petitioner,
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v.
STATE OF CALIFORNIA,

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Respondent.

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1:11-cv—00620-SKO-HC
ORDER DISMISSING THE PETITION FOR
PETITIONER’S FAILURE TO FOLLOW A
COURT ORDER AND PROSECUTE THE
CASE (DOCS. 9, 15, 1)
ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY
ORDER DIRECTING THE CLERK TO
CLOSE THE CASE

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Petitioner is a state prisoner proceeding pro se with a
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to
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the jurisdiction of the United States Magistrate Judge to conduct
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all further proceedings in the case, including the entry of final
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judgment, by manifesting consent in a signed writing filed by
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Petitioner on April 28, 2011 (doc. 14).
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I.

Background

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Petitioner filed the petition in the United States District
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Court for the Northern District of California on January 5, 2011.
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On March 4, 2011, the court issued an order in which it noted
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that Petitioner, who had filed his action on a civil rights form,

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appeared to be challenging a conviction; however, he had failed

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to allege necessary information concerning exhaustion of state

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court remedies.

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evaluate the habeas action in its present state.

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case reclassified as a habeas corpus action, and further ordered

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Petitioner to file within thirty days a habeas petition after

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completing an attached 28 U.S.C. § 2254 form.

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that if Petitioner did not file a completed § 2254 habeas

The court concluded that it could not fairly
It ordered the

The court stated

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petition form within the thirty-day deadline, Petitioner was

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informed that the case would be dismissed for failure to

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prosecute under Fed. R. Civ. P. 41(b).

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mail on Petitioner on March 4, 2011.

The order was served by
(Doc. 9, 5.)

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After the deadline for filing the amended petition had

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passed, the case was transferred to this Court on April 15, 2011.

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On May 4, 2011, this Court issued an order to Petitioner to show

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cause within twenty-one (21) days why the action should not be

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dismissed for failure to file a completed petition and to follow

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an order of the Court.

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Petitioner on the same date.

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passed, but Petitioner has not responded to the Court’s order to

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show cause.

The order was served by mail on
To date, over twenty-one days have

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II.

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Local Rule 110 provides that “...failure of counsel or of a

Dismissal of the Petition

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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.”

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courts have the inherent power to control their dockets and “in
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District

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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

See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54

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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).

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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 January 2011.

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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.

The third factor, risk of

Anderson v. Air

The fourth factor --

Finally, a court’s warning to a party that his failure

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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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petition expressly informed Petitioner that failure to respond to

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the order would result in dismissal of the action.

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Further, the Court’s order to show cause warned Petitioner that a

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failure to respond would result in dismissal of the action.

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(Doc. 15, 3.)

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dismissal would result from his noncompliance with the Court’s

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order.

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Ferdik v. Bonzelet,

The court’s order directing Petitioner to file an amended

(Doc. 9, 3.)

Thus, Petitioner received adequate warning that

The Court concludes that the action should be dismissed for

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Petitioner’s failure to follow a court order and to prosecute the

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case.

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III.

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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.

§ 2253(c)(2).

Under this standard, a

Miller-El v. Cockrell, 537 U.S. at 336

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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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A

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.

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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, the Court will decline to issue a certificate
of appealability.

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IV.

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Accordingly, it is ORDERED that:

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1)

Disposition

The petition is DISMISSED pursuant to Local Rule 110 for

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Petitioner’s failure to comply with the Court’s order and to

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prosecute this action; and

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2) The Court DECLINES to issue a certificate of
appealability; and

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3)

The Clerk is DIRECTED to close the action.

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IT IS SO ORDERED.

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Dated:
ie14hj

June 14, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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