United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR
FAILURE TO OBEY THE COURT'S ORDERS ORDER DIRECTING THAT
OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
March 23, 2016, the Court ordered Petitioner to file an
amended petition within thirty days explaining his efforts to
exhaust his claims and withdrawing those claims that
challenged only conditions of confinement. (Doc. 4). On May
20, 2016, the Court issued an Order to Show Cause why the
petition should not be dismissed for failure to obey the
Court's orders. (Doc. 5). That order gave Petitioner
thirty days within which to respond or face a recommendation
that the petition be dismissed. More than thirty days has
elapsed, yet Petitioner has not responded to the May 20, 2016
Order to Show Cause. Indeed, it appears that Petitioner
refused service of the Order to Show Cause as one of the
docket entries indicates that the order was returned as
"undeliverable, inmate refused."
Exhaustion of Remedies.
petitioner who is in state custody and wishes to collaterally
challenge his conviction by a petition for writ of habeas
corpus must exhaust state judicial remedies. 28 U.S.C. §
2254(b)(1). The exhaustion doctrine is based on comity to the
state court and gives the state court the initial opportunity
to correct the state's alleged constitutional
deprivations. Coleman v. Thompson, 501 U.S. 722, 731
(1991); Rose v. Lundy, 455 U.S. 509, 518 (1982);
Buffalo v. Sunn, 854 F.2d 1158, 1163
petitioner can satisfy the exhaustion requirement by
providing the highest state court with a full and fair
opportunity to consider each claim before presenting it to
the federal court. Duncan v. Henry, 513 U.S. 364,
365 (1995); Picard v. Connor, 404 U.S. 270, 276
(1971); Johnson v. Zenon, 88 F.3d 828, 829
(9th Cir. 1996). In this instance, the highest
state court would be the California Supreme Court. A federal
court will find that the highest state court was given a full
and fair opportunity to hear a claim if the petitioner has
presented the highest state court with the claim's
factual and legal basis. Duncan, 513 U.S. at 365
(legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1,
112 S.Ct. 1715, 1719 (1992) (factual basis).
the petitioner must have specifically told the state court
that he was raising a federal constitutional claim.
Duncan, 513 U.S. at 365-66; Lyons v.
Crawford, 232 F.3d 666, 669 (9th Cir.2000),
amended, 247 F.3d 904 (2001); Hiivala v.
Wood, 195 F.3d 1098, 1106 (9th Cir.1999);
Keating v. Hood, 133 F.3d 1240, 1241 (9th
Petitioner has alleged that he has presented some of the
claims in the instant petition to, variously, the Kings
County Superior Court and the Monterrey County Superior
Court, he does not allege anywhere that he has presented
these issues to the California Supreme Court. Thus, the
petition appears to be entirely unexhausted. Petitioner has
been afforded two opportunities to provide the Court with
evidence that he has exhausted any of his claims, but he has
failed to respond. Accordingly, the Court can conclude that
none of the claims are exhausted. As mentioned previously,
the Court cannot entertain a petition that is entirely
unexhausted. Where none of a petitioner's claims has been
presented to the highest state court as required by the
exhaustion doctrine, the Court must dismiss the petition.
Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.
2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir.
Failure to Obey the Court's Orders
Rule 110 provides that "[f]ailure of counsel or of a
party to comply with these Rules or with any order of the
Court may be grounds for imposition by the Court of any and
all sanctions…within the inherent power of the
Court." District Courts have the inherent power to
control their dockets and "in the exercise of that
power, they may impose sanctions including, where
appropriate…dismissal of a case. Thompson v.
Housing Auth., 782 F.2d 829, 831 (9th Cir.
1986). A court may dismiss an action with prejudice, based on
a party's failure to prosecute an action, failure to obey
a court order, or failure to comply with local rules.
See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54
(9th Cir. 1995)(dismissal for noncompliance with
local rule); Ferdik v. Bonzelet, 963 F.2d 1258,
1260-1261 (9th Cir. 1992)(dismissal for failure to
comply with an order requiring amendment of complaint);
Carey v. King, 856 F.2d 1439, 1440-1441
(9th Cir. 1988)(dismissal for failure to comply
with local rule requiring pro se plaintiffs to keep court
apprised of address); Malone v. U.S. Postal Service,
833 F.2d 128, 130 (9th Cir. 1987)(dismissal for
failure to comply with court order); Henderson v.
Duncan, 779 F.2d 1421, 1424 (9th Cir.
1986)(dismissal for lack of prosecution and failure to comply
with local rules).
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, 779 F.2d at 1423; Ghazali, 46
F.3d at 53; Ferdik, 963 F.2d at 1260-1261;
Malone, 833 F.2d at 130; Thompson, 782 F.2d
at 831; Henderson, 779 F.2d at 1423-1424.
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, as this case
has been pending since March 17, 2016. The third factor, risk
of prejudice to Respondent, 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, a court's warning to a party that
failure to obey the court's order will result in
dismissal satisfies the "consideration of
alternatives" requirement. Ferdik, 963 F.2d at
1262; Malone, 833 at 132-33; Henderson, 779
F.2d at 1424. The Court's order to show cause dated May
20, 2016, expressly stated: "Petitioner is forewarned
that his failure to comply with this order may result in a
Recommendation that the Petition be dismissed pursuant to
Local Rule 110." (Doc. 5, p. 2). Thus, Petitioner had
adequate warning that dismissal would result from his
noncompliance with the Court's order.
the Clerk of the Court is DIRECTED to assign a United States