Cotton v. The People

Filing 9

FINDINGS and RECOMMENDATIONS recommending that Petition be DISMISSED without prejudice for Petitioner's failure to follow the order of the Court and failure to prosecute the action; Court DECLINE to ISSUE A CERTIFICATE OF APPEALABILITY; Clerk DIRECTED to close the action re 1 Petition for Writ of Habeas Corpus filed by Branden Doyle Cotton ; referred to Judge O'Neill,signed by Magistrate Judge Sheila K. Oberto on 11/5/13. Objections to F&R due by 12/9/2013 (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 BRANDEN DOYLE COTTON,

Case No. 1:13-cv-00977-LJO-SKO-HC

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FINDINGS AND RECOMMENDATIONS
TO DISMISS THE PETITION FOR
PETITIONER’S FAILURE TO FOLLOW AN
ORDER OF THE COURT, TO DECLINE TO
ISSUE A CERTIFICATE OF
APPEALABILITY, AND TO DIRECT THE
CLERK TO CLOSE THE CASE

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Petitioner,
v.

15 THE PEOPLE,
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Respondent.

OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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Petitioner is a state prisoner proceeding pro se and in forma
pauerpis with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254.

The matter has been referred to the Magistrate Judge

pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304.
Pending before the Court are the petition, which was filed on
June 26, 2013, and several orders to Petitioner to inform the Court
within thirty days of his decision to consent to, or to decline to
consent to, the jurisdiction of a Magistrate Judge in the present
case.

The notices were served by mail on Petitioner at his address

as listed in the docket on June 26, 2013; August 6, 2013; September
26, 2013; and November 1, 2013.
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I.

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Local Rule 110 provides:

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Failure of counsel or of a party to comply with these
Rules or with any order of the Court may be grounds
for imposition by the Court of any and all sanctions
authorized by statute or Rule or within the inherent
power of the Court.

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Dismissal of the Petition

District courts have the inherent power to control their dockets and
“in the exercise of that power, they may impose sanctions including,
where appropriate... dismissal of a case.”

Thompson v. Housing

Auth., 782 F.2d 829, 831 (9th Cir. 1986).

A court may dismiss an

action, with prejudice, based on a party’s failure to prosecute an
action, failure to obey a court order, or failure to comply with
local rules.

See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th

Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v.
Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for
failure to comply with an order requiring amendment of complaint);
Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for
failure to comply with local rule requiring pro se plaintiffs to
keep court apprised of address); Malone v. U.S. Postal Service, 833
F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with
court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.
1986) (dismissal for lack of prosecution and failure to comply with
local rules).
Here, Petitioner has repeatedly failed to respond to the
Court’s orders regarding consent for a period of over four months.
In determining whether to dismiss an action for lack of prosecution,
failure to obey a court order, or failure to comply with local
rules, the Court must consider several factors: (1) the public’s
interest in expeditious resolution of litigation; (2) the Court’s
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1 need to manage its docket; (3) the risk of prejudice to the
2 respondents; (4) the public policy favoring disposition of cases on
3 their merits; and (5) the availability of less drastic alternatives.
4 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone,
5 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at
6 53.
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Here, the petition has been pending for a lengthy period; thus

8 the Court finds that the public’s interest in expeditiously
9 resolving this litigation and the Court’s interest in managing the
10 docket weigh in favor of dismissal.

The third factor, risk of

11 prejudice to respondents, also weighs in favor of dismissal, since a
12 presumption of injury arises from the occurrence of unreasonable
13 delay in prosecuting an action.
14 524 (9th Cir. 1976).

Anderson v. Air West, 542 F.2d 522,

The fourth factor -- public policy favoring

15 disposition of cases on their merits -- is greatly outweighed by the
16 factors in favor of dismissal discussed herein.

Finally, the Court

17 has reviewed the “consideration of alternatives” requirement.

See,

18 Ferdik v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33;
19 Henderson, 779 F.2d at 1424.

The Court’s order dated September 26,

20 2013, gave Petitioner another thirty days to comply with the Court’s
21 order but expressly informed Petitioner that the action would be
22 dismissed without prejudice if Petitioner failed to respond to the
23 order within thirty days.

Over thirty days have passed, but

24 Petitioner has again failed to respond to the Court’s order.
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The Court concludes that dismissal is appropriate.

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II.

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Unless a circuit justice or judge issues a certificate of

Certificate of Appealability

28 appealability, an appeal may not be taken to the court of appeals
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1 from the final order in a habeas proceeding in which the detention
2 complained of arises out of process issued by a state court.

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3 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
4 (2003).

A certificate of appealability may issue only if the

5 applicant makes a substantial showing of the denial of a
6 constitutional right.

§ 2253(c)(2).

Under this standard, a

7 petitioner must show that reasonable jurists could debate whether
8 the petition should have been resolved in a different manner or that
9 the issues presented were adequate to deserve encouragement to
10 proceed further.

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

11 Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

A certificate should

12 issue if the Petitioner shows that jurists of reason would find it
13 debatable whether: (1) the petition states a valid claim of the
14 denial of a constitutional right, or (2) the district court was
15 correct in any procedural ruling.
16 483-84 (2000).

Slack v. McDaniel, 529 U.S. 473,

In determining this issue, a court conducts an

17 overview of the claims in the habeas petition, generally assesses
18 their merits, and determines whether the resolution was debatable
19 among jurists of reason or wrong.

Id.

An applicant must show more

20 than an absence of frivolity or the existence of mere good faith;
21 however, an applicant need not show that the appeal will succeed.
22 Miller-El v. Cockrell, 537 U.S. at 338.
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A district court must issue or deny a certificate of

24 appealability when it enters a final order adverse to the applicant.
25 Rule 11(a) of the Rules Governing Section 2254 Cases.
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Here, it does not appear that reasonable jurists could debate

27 whether the petition should have been resolved in a different
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Petitioner has not made a substantial showing of the denial
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1 of a constitutional right.

Accordingly, a certificate of

2 appealability should not issue.
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III.

Recommendations

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Based on the foregoing, it is RECOMMENDED that:

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1)

The petition be DISMISSED without prejudice for

6 Petitioner’s failure to follow the order of the Court and failure to
7 prosecute the action;
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2)

The Court DECLINE to issue a certificate of appealability;

3)

The Clerk be DIRECTED to close the action because an order

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11 of dismissal would terminate the proceeding in its entirety.
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These findings and recommendations are submitted to the United

13 States District Court Judge assigned to the case, pursuant to the
14 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local
15 Rules of Practice for the United States District Court, Eastern
16 District of California.

Within thirty (30) days after being served

17 with a copy, any party may file written objections with the Court
18 and serve a copy on all parties.

Such a document should be

19 captioned AObjections to Magistrate Judge=s Findings and
20 Recommendations.@

Replies to the objections shall be served and

21 filed within fourteen (14) days (plus three (3) days if served by
22 mail) after service of the objections.

The Court will then review

23 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C).
24 The parties are advised that failure to file objections within the
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1 specified time may waive the right to appeal the District Court=s
2 order.

Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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5 IT IS SO ORDERED.
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Dated:

November 5, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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