Sims v. On Habeas Corpus

Filing 6

ORDER dismissing 1 Petition for Writ of Habeas Corpus and declining to issue a Certificate of Appealability signed by Magistrate Judge Barbara A. McAuliffe on 10/24/2012. CASE CLOSED.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,
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Petitioner,
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v.
HAROLD LOU SIMS,
Respondent.

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1:12-cv—01351–BAM-HC
ORDER DISMISSING THE PETITION
(DOC. 1) FOR FAILURE TO FOLLOW AN
ORDER OF THE COURT
ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY AND
DIRECTING THE CLERK TO CLOSE THE
CASE

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Petitioner is a state prisoner proceeding pro se and in
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forma pauperis with a petition 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 September 9, 2012 (doc. 5).
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Pending before the Court is the Court’s order of August 29,
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2012 (doc. 4), dismissing the petition for writ of habeas corpus
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(doc. 1) with leave to file an amended petition within thirty
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(30) days of service.
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I.

Dismissal of the Petition with Leave to Amend and
Petitioner’s Failure to Respond to the Court’s Order

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The Court’s order noted that in the original petition,
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Petitioner failed to name a proper respondent, state facts
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warranting habeas corpus relief, allege exhaustion of state court
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remedies, and sign and verify the petition.

(Doc. 4, 2-8.)

The

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order granted Petitioner leave to file a first amended petition
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within thirty (30) days.

The order was served on Petitioner by

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mail on August 29, 2012.
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Over thirty days have passed, and Petitioner has not filed a
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first amended petition or sought an extension of time within
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which to do so.
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II.

Failure to Prosecute and Follow an Order of the Court

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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

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.

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

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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).

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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 August 2012 and plaintiff has not

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responded to court orders.

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to respondents, also weighs in favor of dismissal, since a

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presumption of injury arises from the occurrence of unreasonable

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delay in prosecuting an action.

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522, 524 (9th Cir. 1976).

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favoring disposition of cases on their merits -- is greatly

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outweighed by the factors in favor of dismissal discussed herein.

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

The third factor, risk of prejudice

Anderson v. Air West, 542 F.2d

The fourth factor -- public policy

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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 a failure to file a

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petition in compliance with the Court’s order within the allotted

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time would result in dismissal of the petition and termination of

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the action.

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adequate warning that dismissal would result from his

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Ferdik v. Bonzelet,

The Court’s order directing Petitioner to file an amended

(Doc. 4, 8:22-28.)

Thus, Petitioner received

noncompliance with the Court’s order.

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The Court concludes that the action will be dismissed.

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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.

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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

§ 2253(c)(2).

Under this standard, a

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

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A

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valid claim of the denial of a constitutional right or 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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conducts an overview of the claims in the habeas petition,

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generally assesses their merits, and determines whether the

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resolution was debatable among jurists of reason or wrong.

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It is necessary for an applicant to show more than an absence of

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frivolity or the existence of mere good faith; however, it is not

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necessary for an applicant to show that the appeal will succeed.

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Miller-El v. Cockrell, 537 U.S. at 338.

Slack v. McDaniel,

In determining this issue, a court

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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.

Id.

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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 and has refused to

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respond to court orders.

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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 without prejudice pursuant to

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Local Rule 110 for Petitioner’s failure to comply with the

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Court’s order; 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 because this

order terminates it in its entirety.
IT IS SO ORDERED.
Dated:
10c20k

October 24, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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