Perez v. On Habeas Corpus

Filing 10

ORDER DISMISSING 1 PETITION for Failure to Follow a Court Order and to Prosecute and ORDER DECLINING to Issue a Certificate of Appealability, signed by Magistrate Judge Sheila K. Oberto on 2/27/2013. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARK LEON PEREZ
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Petitioner,
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v.
ON HABEAS CORPUS,
Respondent.

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1:12-cv—01920-SKO-HC
ORDER DISMISSING THE PETITION FOR
FAILURE TO FOLLOW A COURT ORDER
AND TO PROSECUTE (DOC. 1)
ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY AND
DIRECTING THE CLERK TO CLOSE THE
ACTION

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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.

Pursuant to 28 U.S.C. § 636(c)(1), Petitioner

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has consented to the jurisdiction of the United States Magistrate
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Judge to conduct all further proceedings in the case, including
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the entry of final judgment, by manifesting consent in a signed
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writing filed by Petitioner on December 12, 2012 (doc. 6).
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Pending before the Court is the petition filed by Petitioner on
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November 27, 2012, and the Court’s order to show cause that was
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filed and served on Petitioner on January 24, 2013.
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I.

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Petitioner named as Respondent “On Habeas Corpus.”

Background
(Pet.

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1.)

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leave to Petitioner to file a motion to amend the petition to

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name a proper respondent within thirty days, which was served on

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Petitioner on the same date.

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motion to amend the petition within the thirty-day period set by

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the Court, on January 24, 2013, he Court issued an order to

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Petitioner to show cause within twenty-one (21) days why the

On December 7, 2012, the Court issued an order granting

When Petitioner did not file a

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petition should not be dismissed for failure to comply with the

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Court’s order.

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on the same date.

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since the Court’s order was served on Petitioner, Petitioner has

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not responded to the order to show cause or sought a timely

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extension of time within which to do so.

The order to show cause was served on Petitioner
Although over twenty-one (21) days have passed

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II.

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

Failure to Prosecute and Follow an Order of the Court

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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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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);

District

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

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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 November 2012.

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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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The third factor, risk of

Anderson v. Air

The fourth factor --

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

Ferdik v. Bonzelet,

The Court’s order directing Petitioner to file an amendment

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expressly informed Petitioner that a failure to comply with the

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order would result in dismissal of the petition for lack of

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jurisdiction or failure to name as respondent a person with the

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power to produce the Petitioner.

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Court’s order to show cause expressly stated that a failure to

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comply with an order of the court might result in dismissal (doc.

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7, 2), and a failure to respond to the order to show cause would

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result in dismissal of the action.

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Petitioner received adequate warning that dismissal would result

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from his noncompliance with the Court’s order.

(Doc. 5, 4.)

(Doc. 7, 3.)

Further, the

Thus,

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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

§ 2253(c)(2).

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Under this standard, a

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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 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.

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

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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.

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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Id.

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 debate

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whether the petition should have been resolved in a different

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manner.

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denial of a constitutional right.

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decline to issue a certificate of appealability.

Petitioner has not made a substantial showing of the
Accordingly, the Court will

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IV.

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Accordingly, it is ORDERED that:

Disposition

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1)

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

February 27, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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