Morris v. McDonald

Filing 7

ORDER signed by Magistrate Judge Craig M. Kellison on 12/23/2011 ORDERING that this action is summarily DISMISSED. The court declines to issue a certificate of appealability. The Clerk of the Court is directed to enter judgment and close this file. CASE CLOSED. (Duong, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EARL C. MORRIS,

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No. CIV S-11-2023-CMK-P

Petitioner,

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vs.

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M. McDONALD,

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ORDER

Respondent.
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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254 challenging the denial of parole. Petitioner has

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consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and no other party has

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been served or appeared in the action.

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On August 17, 2011, the court directed petitioner to show cause in writing why

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this action should not be summarily dismissed pursuant to the United States Supreme Court’s

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recent ruling in Swarthout v. Cooke, 562 U.S. ___, 131 S. Ct. 859, 862 (9th Cir. 2011) (per

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curiam). The due date for petitioner’s response was extended to November 22, 2011. Petitioner

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had been warned that failure to respond to the order to show cause could result in dismissal of the

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action, both for the reasons stated in the order as well as for lack of prosecution and failure to
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comply with court rules and orders. See Local Rule 110. To date, petitioner has not responded

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to the order to show cause.

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The court must weigh five factors before imposing the harsh sanction of

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dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v.

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U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's

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interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3)

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the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran,

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46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an

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appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor.

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See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is

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appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421,

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1423 (9th Cir. 1986).

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Having considered these factors in light of petitioner’s failure to respond to the

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court’s August 17, 2011, order, and for the reasons stated therein, the court finds that dismissal of

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this case is appropriate.

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Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the

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court has considered whether to issue a certificate of appealability. Before petitioner can appeal

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this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P.

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22(b). Where the petition is denied on the merits, a certificate of appealability may issue under

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28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a

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constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of

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appealability indicating which issues satisfy the required showing or must state the reasons why

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such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed

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on procedural grounds, a certificate of appealability “should issue if the prisoner can show:

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(1) ‘that jurists of reason would find it debatable whether the district court was correct in its
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procedural ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition

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states a valid claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775,

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780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000)).

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For the reasons set forth herein and in the court’s August 11, 2011, order, the court finds that

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issuance of a certificate of appealability is not warranted in this case.

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Accordingly, IT IS HEREBY ORDERED that:

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This action is summarily dismissed;

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The court declines to issue a certificate of appealability; and

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The Clerk of the Court is directed to enter judgment and close this file.

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DATED: December 23, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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