Washington v. Pfeiffer
Filing
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FINDINGS and RECOMMENDATIONS for Dismissal of Petitioner for Failure to Obey a Court Order signed by Magistrate Judge Sheila K. Oberto on 12/11/2018. Referred to Judge Drozd; Objections to F&R due by 1/14/2019. (Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CHRIS LAVALE WASHINGTON,
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No. 1:18-cv-00368-SKO (HC)
Petitioner,
v.
FINDINGS AND RECOMMENDATIONS
FOR DISMISSAL OF PETITIONER FOR
FAILURE TO OBEY A COURT ORDER
C. PFEIFFER, Warden,
Respondent.
COURT CLERK TO ASSIGN DISTRICT
JUDGE
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(Doc. 1)
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Petitioner, Chris Lavale Washington, is a state prisoner proceeding with a petition for writ
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of habeas corpus pursuant to 28 U.S.C. § 2254. On March 19, 2018, Petitioner filed his petition
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for writ of habeas corpus and a motion to stay proceedings so that he may exhaust his state court
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remedies. (Docs. 1, 2.) On March 29, 2018, United States Magistrate Judge Stanley A. Boone
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ordered Petitioner to file supplemental briefing regarding the stay. (Doc. 5.) After being granted
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multiple extensions of time, Petitioner filed the supplemental briefing and the undersigned granted
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a stay of proceedings on June 5, 2018. (Doc. 16.)
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On October 2, 2018, the undersigned ordered Petitioner to show cause why the case should
not be dismissed for failure to obey a court order when Petitioner failed to timely file a status report.
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(Doc. 17.) Petitioner responded to the order to show cause on October 22, 2018, advising the Court
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that the California Supreme Court had made a final determination in his case, and requested that
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the Court lift the stay. (Doc. 18.)
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On October 23, 2018, the undersigned lifted the stay and directed Petitioner to file an
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amended petition within 30 days. Although more than 30 days have passed, Petitioner has failed
to file an amended petition or respond to the undersigned’s order in any way.
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The Court has the discretion to impose any and all sanctions authorized by statute or rule or
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within the inherent power of the Court, including dismissal of an action based on Petitioner’s failure
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to comply with a court order. Fed .R. Civ. P. 11; Local R. 110. Because Petitioner has failed to
respond to the undersigned’s order to file an amended complaint, the undersigned recommends
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dismissing the action.
Certificate of Appealability
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A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district
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court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell,
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537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate
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of appealability is 28 U.S.C. § 2253, which provides:
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(a) In a habeas corpus proceeding or a proceeding under section 2255 before
a district judge, the final order shall be subject to review, on appeal, by the
court of appeals for the circuit in which the proceeding is held.
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(b) There shall be no right of appeal from a final order in a proceeding to
test the validity of a warrant to remove to another district or place for
commitment or trial a person charged with a criminal offense against the
United States, or to test the validity of such person's detention pending
removal proceedings.
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(c)
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(1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals
from—
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(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State
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court; or
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(B) the final order in a proceeding under section 2255.
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(2) A certificate of appealability may issue under paragraph (1)
only if the applicant has made a substantial showing of the denial
of a constitutional right.
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(3) The certificate of appealability under paragraph (1) shall
indicate which specific issues or issues satisfy the showing
required by paragraph (2).
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If a court denies a habeas petition, the court may only issue a certificate of appealability "if
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jurists of reason could disagree with the district court's resolution of his constitutional claims or
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that jurists could conclude the issues presented are adequate to deserve encouragement to proceed
further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the
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petitioner is not required to prove the merits of his case, he must demonstrate "something more than
the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 537 U.S.
at 338.
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In the present case, the Court finds that reasonable jurists would not find the Court's
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determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or
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deserving of encouragement to proceed further. Accordingly, the Court recommends declining to
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issue a certificate of appealability.
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Recommendation
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Based on the foregoing, the undersigned hereby recommends that the Court dismiss the
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petition in this action without prejudice for failure to obey a court order and decline to issue a
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certificate of appealability.
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These Findings and Recommendations will be submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty (30) days
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after being served with these Findings and Recommendations, either party may file written
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objections with the Court. The document should be captioned AObjections to Magistrate Judge=s
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Findings and Recommendations.@ Replies to the objections, if any, shall be served and filed within
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fourteen (14) days after service of the objections. The parties are advised that failure to file
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objections within the specified time may constitute waiver of the right to appeal the District Court's
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order. Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. Sullivan, 923
F.2d 1391, 1394 (9th Cir. 1991)).
The Court Clerk is hereby directed to assign a district judge to this action.
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IT IS SO ORDERED.
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Dated:
December 11, 2018
/s/
Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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