Perez v. On Habeas Corpus

Filing 13

ORDER Dismissing the Petition for Failure to Follow a Court Order and to Prosecute; ORDER Declining to Issue a Certificate of Appealability and Directing the Clerk of Court to Close Action, signed by Magistrate Judge Sheila K. Oberto on 4/25/13. CASE CLOSED. (Verduzco, M)

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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 of march 1, 2013, that
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1) vacated a prior judgment of dismissal that had issued based on
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Petitioner’s previous failure to file timely a motion to amend

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the petition to name a proper respondent, and 2) directed

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

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proper respondent within thirty days (doc. 12).

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served on Petitioner by mail on March 1, 2013.

The order was

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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

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

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

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

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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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about the time that Petitioner filed an untimely response to the

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order to show cause.

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order of March 1, 2013.

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When Petitioner did not file a

The order to show cause was served on Petitioner
An order dismissing the case was processed

The dismissal was vacated by the Court’s

Although over thirty days have passed since the issuance of

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the Court’s order to Petitioner to file a motion to amend the

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petition within thirty days, no motion to amend the petition or

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request for an extension of time to file such a motion has been

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filed.

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II.

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

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Failure to Prosecute and Follow an Order of the Court

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.

District

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

Thompson, 782 F.2d at 831; Henderson,

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1260-61; Ghazali, 46 F.3d at 53.

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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).

The third factor, risk of

Anderson v. Air

The fourth factor --

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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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to file a motion to amend the petition, expressly informed

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Petitioner that a failure to comply with the order in a timely

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fashion would result in dismissal of the petition without further

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notice for failure to comply with a court order and failure to

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prosecute.

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warning that dismissal would result from his noncompliance with

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the Court’s order.

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

Ferdik v. Bonzelet,

The Court’s order of March 1, 2013, directing Petitioner

(Doc. 12, 4.)

Thus, Petitioner received adequate

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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 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.

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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
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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The Clerk is DIRECTED to close the action.

IT IS SO ORDERED.
Dated:
3em3ec

April 25, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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