Hill v. Swarthout

Filing 10

ORDER signed by Magistrate Judge Craig M. Kellison on 12/29/11 ORDERING that this action is summarily dismissed; All pending motions 6 are DENIED as moot; The court DECLINES to issue a certificate of appealability; and the Clerk of the Court is directed to enter judgment and close this file. CASE CLOSED. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HARRILL HILL,

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Petitioner,

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No. CIV S-11-2457-CMK-P

vs.

ORDER

GARY SWARTHOUT,

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Respondent.

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/

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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 November 15, 2011, the court directed petitioner to show cause in writing

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within 30 days why this action should not be summarily dismissed because petitioner’s claim has

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no merit. See Gilman v. Schwarzenegger, 638 F.3d 1101 (9th Cir. 2011). Petitioner was

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cautioned that failure to respond could result in dismissal of the action. See Local Rule 110. To

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date, petitioner has not filed a response.

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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, and for the reasons stated in the court’s

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November 15, 2011, order to show cause the court finds that dismissal of the action is

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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: (1)

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‘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 in the November 15, 2011, order to show cause, and given petitioner’s

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lack of prosecution and failure to comply with court orders, the court finds that issuance of a

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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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All pending motions (Doc. 6) are denied as moot;

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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 29, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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