Choate v. Williams et al

Filing 95

ORDER dismissing action without prejudice. Certificate of Appealability is denied. Signed by Judge Richard F. Boulware, II on 6/26/2018. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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STEPHEN LEE CHOATE,

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Petitioner,

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Case No. 2:16-cv-00813-RFB-GWF
ORDER

v.
NEVADA ATTORNEY GENERAL, et al.,

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Respondents.

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This is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. §

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2254. This action was originally opened with the filing of an application to proceed in

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forma pauperis along with a six-page document entitled “Same Claim – Successive

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Petition, 28 U.S.C. § 2244(b)(2)(B).” (ECF No. 1-1). The documents were received by

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the Clerk’s Office on April 6, 2016. On April 16, 2016, the Court dismissed this action

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without prejudice due to petitioner’s failure to submit complete financial information in

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support of his in forma pauperis application. (ECF No. 7). Judgment was entered. (ECF

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No. 8).

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On May 6, 2016, petitioner submitted for filing a petition for relief pursuant to 28

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U.S.C. § 2254. The document was received by the Clerk’s Office on May 12, 2016, and

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was opened as Case Number 2:16-cv-01093-RFB-CWH. 1 Along with the § 2254 petition,

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ECF No. 1-1 in Case Number 2:16-cv-1093-RFB-CWH.

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petitioner also filed a motion to file excess pages and a motion to amend the petition to

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include a 113-page attachment and “30 addendums.” 2

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On January 24, 2017, the Court held a hearing at which it vacated the order of

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dismissal and judgment in this case. (ECF No. 38). The Court further ordered that Case

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Number 2:16-cv-01093-RFB-CWH be consolidated with this case and designated this

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case as the lead case. (ECF No. 38). The Court directed petitioner to submit the

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paperwork required for a complete in forma pauperis application, which petitioner did.

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On March 20, 2017, the Court found the motion to amend in Case Number 2:16-

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cv-01093-RFB-CWH to be defective as the 113-page attachment petitioner sought to

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include was not on the court’s form. 3 In addition, the Court advised petitioner that it would

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not hunt through the allegations in the 113-page attachment to glean what claims

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petitioner sought to raise. The Court therefore denied the motion to amend and instructed

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petitioner that if he wished to file an amended petition, he needed to submit a “concise”

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proposed amended petition on the court’s form.

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On March 29, 2017, the Court granted petitioner’s application to proceed in forma

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pauperis. (ECF No. 56). However, the Court concluded, there was no operative petition

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pending in either this case or Case Number 2:16-cv-01093-RFB-CWH. Indicating that

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the voluminous attachments petitioner sought to include as part of his petition were

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improper, the Court explained that a petition must concisely state the claims petitioner

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believed might be a basis for granting him habeas relief. The Court directed the Clerk of

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Court to send petitioner a copy of the approved form and granted petitioner leave to file

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an amended petition, on the approved form, no later than May 15, 2017. The Court

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admonished petitioner that a failure to file an amended petition on the approved form

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could result in the dismissal of this action.

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Instead of filing an amended petition, petitioner filed numerous motions, including

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a motion to reconsider the denial of his motion to amend and a motion for leave to file a

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ECF No. 4 in Case Number 2:16-cv-01093-RFB-CWH.
See ECF No. 26 in Case Number 2:16-cv-01093-RFB-CWH.

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lengthy § 2254 petition. Petitioner also filed a motion to stay this case as a protective

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federal petition (ECF No. 81). On February 1, 2018, the Court entered an order denying

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the petitioner’s various motions and directing petitioner to file a “protective” petition on the

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Court’s form and in compliance with the Court’s prior orders. (ECF No. 82).

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On February 16, 2018, petitioner mailed an amended protective petition. (ECF No.

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83). While shorter on its face, the petition was complete only by referring to another

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document – apparently the 113-page document previously filed at ECF No. 4 in Case No.

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2:16-cv-1093-RFB-CWH, which the Court previously rejected as prolix. (See id. at 3, 5 &

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7 (citing to “115 typed addendum” for “fact pattern”)). On June 13, 2018, the Court found

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that petitioner’s amended petition did not comply with the Court’s prior orders. The Court

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granted petitioner one more opportunity to amend his petition and advised petitioner that

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his second amended petition must be complete in itself, without reference to other

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documents, and must clearly and concisely set forth the claims he asserts and the facts

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that support them, without repetition and without unnecessary legal citations. It advised

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petitioner that failure to do so would result in dismissal of this action without prejudice.

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On June 19, 2018, petitioner filed a second amended petition.

It is virtually

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identical to the amended petition filed on February 16, 2018, except that it excludes

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reference to the “fact pattern” and specific pages of the addendum but still includes

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reference to the “115 typed addendum.” This is contrary to the Court’s explicit instruction

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that the petition must be complete in itself, without reference to other documents.

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Petitioner has, therefore, failed to comply with the Court’s orders.

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As petitioner has failed to comply with the Court’s orders, the Court considers

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whether this action should be dismissed as a sanction. The Court must weigh five factors

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before imposing the harsh sanction of dismissal: (1) the public’s interest in expeditious

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resolution of litigation; (2) the court’s need to manage its own docket; (3) the risk of

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

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merits; and (5) the availability of less drastic sanctions. ee Bautista v. Los Angeles

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County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal Service, 833 F.2d 128,
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130 (9th Cir. 1987). A warning that the action will be dismissed for failure to follow a court

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order is a less drastic alternative sufficient to satisfy the last factor. See Malone, 833 F.2d

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at 132-33 & n. 1. Dismissal is an appropriate sanction for failure to follow local rules.

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Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.1995) (per curiam).

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The first and second factors both favor dismissal. The Court has granted petitioner

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multiple opportunities to file an amended petition in compliance with its orders but

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petitioner has failed to do so. Thus, the failure to file an amended petition that the Court

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can proceed to screen and have served on respondents has both delayed the expeditious

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resolution of this action and interfered with the Court’s ability to manage its docket. The

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third factor also favors dismissal. There is no risk of prejudice to the respondents as they

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have not yet appeared. The fourth factor is neutral. While public policy is to decide cases

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on their merits, the entirety of the petition appears to be unexhausted. Although petitioner

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has filed motions to stay and abey, he does not even attempt to establish good cause for

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the failure to exhaust. Thus, even if the Court were to allow the petition to proceed, it is

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unlikely a stay would be granted and is instead likely the petition would be dismissed

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without prejudice as wholly unexhausted, and the statute of limitations for both state and

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federal habeas petitions has long since expired. Therefore, under the circumstances of

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this case, the policy in favor of deciding cases on their merits is not contravened by a

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dismissal of this action because it is unlikely this case would be decided on its merits at

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any rate. Finally, the fifth factor also favors dismissal. The Court advised petitioner that

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failure to file an amended petition that complied with its orders would result in the

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dismissal of this action. Accordingly, the factors the Court must consider favor dismissal

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of this action as a sanction for petitioner’s failure to comply with the Court’s order. This

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action will therefore be dismissed without prejudice.

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In accordance with the foregoing, IT IS HEREBY ORDERED that this action is
dismissed without prejudice.

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IT IS FURTHER ORDERED that petitioner is denied a certificate of appealability,

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as jurists of reason would not find the Court’s dismissal of the petition to be debatable or

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wrong.

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IT IS FURTHER ORDERED that the Clerk shall add Adam P. Laxalt, Attorney
General for the State of Nevada, as counsel for respondents.

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IT IS FURTHER ORDERED that the Clerk shall electronically serve respondents

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with a copy of the latest petition in this action (ECF No. 93) and a copy of this order. No

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response by respondents is necessary.

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The Clerk of the Court shall enter final judgment accordingly and close this case.
DATED this 26th day of June, 2018.

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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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