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Timothy E. Hissong, Sr v. State of California

April 27, 2013

TIMOTHY E. HISSONG, SR.,
PETITIONER,
v.
STATE OF CALIFORNIA,
RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE FOR PETITIONER'S FAILURE TO FOLLOW A COURT ORDER AND PROSECUTE THE CASE (DOCS. 1, 8) FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE CLERK TO CLOSE THE CASE DEADLINE FOR OBJECTIONS: THIRTY (30) DAYS

Petitioner is a state prisoner proceeding pro se and in forma pauperis 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 is the petition, which was filed on September 13, 2012.

I. Petitioner's Failure to Follow the Court's Orders regarding Consent

On September 14, 2012, the Court issued an order directing Petitioner to complete and return to the Court within thirty (30) days a form indicating whether Petitioner consented to the jurisdiction of the Magistrate Judge or requested the reassignment of the case to a District Judge. The order was served on Petitioner on the same date. Over thirty days passed, but Petitioner failed to respond to the Court's order.

On January 24, 2013, the Court issued an order directing Petitioner to complete and return to the Court within thirty (30) days a form indicating whether Petitioner consented to the jurisdiction of the Magistrate Judge or requested the reassignment of the case to a District Judge. Further, the order informed Petitioner that if he failed to comply with the order, the action would be dismissed without prejudice for Petitioner's failure to comply with the order. The order was served on Petitioner on the date it issued. Over thirty days have passed, but Petitioner has failed to sign and return the consent form to the Court.

II. Petitioner's Failure to Inform the Court of His Address

The Court's order of January 24, 2013, was returned on February 4, 2013, by the United States Postal Service as undeliverable, with a notation that the inmate was no longer at the address listed in the docket.

Pursuant to Local Rule 183(b), a party appearing in propria persona is required to keep the Court apprised of his or her current address at all times. Local Rule 183(b) provides, in pertinent part:

If mail directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice for failure to prosecute.

Here, over sixty-three days (63) have passed since Petitioner's mail was returned, and he has not notified the Court of a current address.

In determining whether to dismiss an action for lack of prosecution, the Court must consider several factors: (1) the public's interest in expeditious resolution of litigation; (2) the Court's need to manage its docket; (3) the risk of prejudice to the respondents; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988). The Court finds that the public's interest in expeditiously resolving this litigation and the Court's interest in managing the docket weigh in favor of dismissal because this case has been pending since September 2012. The Court cannot hold this case in abeyance indefinitely based on Petitioner's failure to notify the Court of his address. The third factor, risk of prejudice to respondents, also weighs in favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor, public policy favoring disposition of cases on their merits, is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, given the Court's inability to communicate with Petitioner based on Petitioner's failure to keep the Court apprised of his current address, no lesser sanction is feasible.

Therefore, it will be recommended that the petition be dismissed for Petitioner's failure to comply with the Court's orders regarding consent and failure to comply with the local rule that requires a petitioner to keep the Court informed of his current address.

III. Certificate of Appealabiltiy

Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the Court of Appeals from the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A certificate of appealability may issue only if the applicant makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). A certificate should issue if the Petitioner shows that jurists of reason would find it debatable whether the ...


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