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Cappiello v. Perez

United States District Court, C.D. California, Western Division

March 24, 2015



DALE S. FISCHER, District Judge.


On October 8, 2014, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody. On December 10, 2014, respondent filed a Motion to Dismiss on the ground that all of petitioner's claims are unexhausted. (Dkt. No. 7). Per the Magistrate Judge's October 10, 2014, Order Requiring Response to Petition for Writ of Habeas Corpus, petitioner's opposition to the Motion to Dismiss was due by January 10, 2015. (See Dkt. No. 3). When, as of January 26, 2015, petitioner had not filed an opposition to the Motion to Dismiss, the Magistrate Judge ordered petitioner to file an opposition to the Motion to Dismiss "no later than February 23, 2015." (Dkt. No. 9). Petitioner was advised that "failure to oppose a motion to dismiss may be construed as consent to the granting of the motion, and may result in dismissal of the action." (Id. (citing C.D. Cal. R. 7-12)). On February 25, 2015, the Magistrate Judge's January 26, 2015, order was returned to the Court with the notation "Paroled 01/16/15." (Dkt. No. 10).

On March 3, 2015, the Magistrate Judge issued an order to petitioner to show cause "no later than March 16, 2015, " why this case should not be summarily dismissed for failure to notify the Court of his current address in compliance with Local Rule 41-6, for failure to prosecute, and as unexhausted ("Order to Show Cause"). (Dkt. No. 11). Petitioner was advised that failure to respond by March 16, 2015, "will result in the instant Petition being summarily dismissed with prejudice for failure to prosecute and to obey court orders, and as unexhausted." (Order to Show Cause at 2).

To date, petitioner has not filed a response to either the January 26, 2015, order to file an opposition to the Motion to Dismiss, or to the March 3, 2015, Order to Show Cause, and his time to do so has passed.



As a matter of comity, a federal court will not entertain a habeas corpus petition unless the petitioner has exhausted the available state judicial remedies on every ground presented in the petition. Rose v. Lundy , 455 U.S. 509, 518-22, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The habeas statute explicitly provides that a habeas petition brought by a person in state custody "shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1).

Exhaustion requires that petitioner's contentions be fairly presented to the state supreme court even if that court's review is discretionary. O'Sullivan v. Boerckel , 526 U.S. 838, 845-47, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); James v. Giles , 221 F.3d 1074, 1077 n.3 (9th Cir. 2000). Petitioner must give the state courts "one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process" in order to exhaust his claims. O'Sullivan , 526 U.S. at 845. A claim has not been fairly presented unless the prisoner has described in the state court proceedings both the operative facts and the federal legal theory on which his claim is based. See Duncan v. Henry , 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Picard v. Connor , 404 U.S. 270, 275-78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Johnson v. Zenon , 88 F.3d 828, 830 (9th Cir. 1996); Bland v. Cal. Dep't of Corr. , 20 F.3d 1469, 1473 (9th Cir. 1994), overruled on other grounds by Schell v. Witek , 218 F.3d 1017 (9th Cir. 2000). Petitioner has the burden of demonstrating that he has exhausted available state remedies. See, e.g., Brown v. Cuyler , 669 F.2d 155, 158 (3d Cir. 1982).

Here, it is clear from the face of the Petition and its exhibits that although petitioner attempted to submit his claims to the California Supreme Court in a petition for review, that court refused to consider the petition for review because it was filed beyond the deadline for filing such a petition. (Pet. at 3, Exs. at 13[1] (August 26, 2014, letter from the California Supreme Court Deputy Clerk informing petitioner that his petition for review "received August 25, 2014 in the above-entitled matter cannot be considered by this court due to lack of jurisdiction. [¶] Our records indicate the Court of Appeal filed its decision on March 3, 2014. The last day we could have entertained any pleading was May 2, 2014.")).[2] Petitioner did not file any habeas petitions in the state courts. (Pet. at 6-7). Thus, petitioner has not exhausted his claims in the California Supreme Court. Nor has petitioner provided any reason to this Court to explain why the Petition should not be dismissed as unexhausted. See 28 U.S.C. § 2254(b)(1). Accordingly, the Court can construe petitioner's failure to file an opposition to the Motion to Dismiss as consent to the granting of the motion. (C.D. Cal. R. 7-12).

In light of the foregoing, the Court finds that it is appropriate to dismiss the Petition for failure to exhaust state court remedies and for failure to oppose the Motion to Dismiss. Greenawalt v. Stewart , 105 F.3d 1268, 1271, 1273-75 (9th Cir. 1997).


It is well established that a district court has authority to dismiss a petitioner's action because of his or her failure to prosecute or to comply with court orders. See Fed.R.Civ.P. 41(b); Link v. Wabash R.R. Co. , 370 U.S. 626, 629-30, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (holding that a court's authority to dismiss for lack of prosecution is necessary to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the district courts); Ferdik v. Bonzelet , 963 F.2d 1258, 1260 (9th Cir. 1992) (holding that a district court may dismiss an action for failure to comply with any order of the court).

In determining whether to dismiss this action due to petitioner's failure to prosecute or comply with court orders the Court must consider the following five 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 sanctions." Carey v. King , 856 F.2d 1439, 1440 (9th Cir. 1988) (per curiam) (citation and internal quotation marks omitted); see ...

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