United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR
WRIT OF HABEAS CORPUS
is a state prisoner proceeding pro se with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. Given that the instant petition contains
unexhausted claims and Petitioner has failed to obey a court
order, the undersigned recommends dismissal of the petition.
April 3, 2017, Petitioner filed the instant federal habeas
petition. (ECF No. 1). On April 6, 2017, the Court ordered
Petitioner to show cause why the petition should not be
dismissed for failure to exhaust state court remedies and for
failure to state cognizable federal habeas claims. (ECF No.
4). To date, Petitioner has failed to file a response, and
the time for doing so has passed.
of the Rules Governing Section 2254 Cases requires
preliminary review of a habeas petition and allows a district
court to dismiss a petition before the respondent is ordered
to file a response, if it “plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.” Rule 4,
Rules Governing Section 2254 Cases.
petitioner in state custody who is proceeding with 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). A 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.
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999); Duncan v. Henry, 513 U.S. 364, 365 (1995);
Picard v. Connor, 404 U.S. 270, 276 (1971).
not appear that Petitioner has presented his claims to the
California Supreme Court. (ECF No. 1 at 12,
It is possible that Petitioner has presented all of his
claims to the California Supreme Court and failed to indicate
this to the Court. However, as Petitioner has not responded
to the order to show cause, it appears that Petitioner failed
to exhaust his claims in the instant petition. If Petitioner
has not sought relief in the California Supreme Court for the
claims that he raises in the instant petition, the Court
cannot proceed to the merits of those claims. 28 U.S.C.
Failure to Obey Court Order
to Federal Rule of Civil Procedure 41(b), a district court
may dismiss an action for failure to prosecute, failure to
comply with the Federal Rules of Civil Procedure, or failure
to comply with the court's orders. See, e.g.,
Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991)
(recognizing federal court's inherent power to “act
sua sponte to dismiss a suit for failure to
prosecute”); Hells Canyon Preservation Council v.
U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005)
(recognizing that courts may dismiss an action pursuant to
Federal Rule of Civil Procedure 41(b) sua sponte for a
plaintiff's failure to prosecute or comply with the rules
of civil procedure or the court's orders). Local Rule 110
provides that a “[f]ailure of counsel or of a party to
comply with these Rules or with any order of the Court may be
grounds for the 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).
determining whether to dismiss an action under Rule 41(b),
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 defendants; (4) the public
policy favoring disposition of cases on their merits; and (5)
the availability of less drastic alternatives.”
Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir.
2010) (quoting Henderson v. Duncan, 779 F.2d 1421,
1423 (9th Cir. 1986)).
instant case, 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 Petitioner has refused delivery of court
documents on three different occasions and the Court cannot
hold this case in abeyance indefinitely awaiting compliance
by Petitioner. 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. See 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 outweighed by the factors in favor of
dismissal. Finally, as the Court's order had informed
Petitioner that failure to comply with the order would result
in dismissal of the petition, the Court finds that there are
no feasible less drastic alternatives. See In re
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