Jonathan Cary v. The Attorney General of the State of California

• Court: District Court, C.D. California
• Decided: February 11, 2020
• Docket: 2:19-cv-03272
• Status: Unknown

Opinion

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7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 JONATHAN CARY Case No. 2:19-cv-03272-DSF (SHK) 12 Petitioner, 13 ORDER SUMMARILY DENYING v. PETITION AS PREMATURE AND 14 UNEXHAUSTED, DISMISSING THE ATTORNEY GENERAL OF CASE, AND DENYING A 15 THE STATE OF CALIFORNIA, CERTIFICATE OF APPEALABILITY 16 Respondent. 17

18 19 I. BACKGROUND 20 Petitioner Jonathan Cary (“Petitioner”), proceeding pro se, signed and filed 21 a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition” or 22 “Pet.”) pursuant to 28 U.S.C. § 2254.1 Electronic Case Filing Number (“ECF 23 No.”) 1, Pet. On May 31, 2019, the Court issued an Order to Show Cause Why 24 This Action Should Not Be Dismissed As Untimely And Unexhausted (“First 25

26 1 Upon receipt of the Petition, the Clerk of Court notified Petitioner that he had failed to “pay the appropriate filing fee of $5.00” and instructed Petitioner to either pay the $5.00 filing fee or 27 to apply to proceed in forma pauperis (“IFP”). ECF No. 1-1 Notice Re: Discrepancies in Filing 1 OSC”) and ordered Petitioner to respond by June 30, 2019. ECF No. 3, OSC. On 2 June 10, 2019, Petitioner responded to the OSC and stated that he has been diligent 3 in pursuing his habeas relief and citing to filings he submitted in 2017 and 2018. 4 ECF No. 4, Response to First OSC. 5 Without deciding the timeliness issue, and “only for purposes of allowing 6 the matter to go forward and allow the Respondent to respond,” in a Second OSC 7 (“Second OSC”), “the Court f[ound] that Petitioner adequately addressed the 8 timeliness issue about which the Court asked Petitioner in the previous OSC.” 9 ECF No. 5, Second OSC at 1-2. The Court, however, found that “Petitioner has 10 not provided an adequate response to the exhaustion issue, as was requested in the 11 previous OSC.” Id. at 2. 12 In the Second OSC, the Court “again explain[ed] the requirement for 13 exhaustion of Petitioner’s claims before the California Supreme Court before the 14 federal courts can address Petitioner’s currents claims and also provide[d] the 15 various steps Petitioner may choose to take at th[at] point.” Id. The Court also 16 ordered the following regarding the subject of Petitioner’s response: “Petitioner’s 17 response as to how he wants to proceed or an explanation, along with details 18 regarding case numbers and rulings, showing that the California Supreme 19 Court has actually ruled on Petitioner’s claims that he seeks to present here 20 must be filed by July 21, 2019.” Id. (emphasis in original). Finally, the Court 21 “warn[ed] Petitioner that failure to timely file a response to th[at] Order will 22 result in the Court dismissing this action with prejudice as untimely, and for 23 failure to prosecute and comply with court orders.” Id. at 4 (citing Fed. R. Civ. 24 P. 41(b) (emphasis in original)). 25 To date—over six months past the deadline to do so—Petitioner has not 26 responded to the Court’s Second OSC or otherwise participated in this litigation. 27 Accordingly, dismissal of this action is appropriate here because Petitioner has 1 failed to (1) demonstrate that he has exhausted his claims, and (2) prosecute this 2 action and comply with Court orders. The Court addresses both reasons in turn. 3 II. DISCUSSION 4 A. Petition Fails Because It Contains Unexhausted Claims. 5 A summary of the trial proceedings was provided in the First and Second 6 OSC. See ECF No. 3, First OSC at 2; ECF No. 5, Second OSC and 2. As was 7 stated in the Second OSC: 8 An initial state habeas petition was filed with the California Court of Appeal, in case number B282645, which was summarily 9 denied on May 22, 2017. There also appears to be a newly filed state 10 habeas petition, filed on June 17, 2019, in case number B298393. It is 11 unclear from the California court websites, however, the nature of the claims raised before the California appellate courts. Additionally, as 12 indicated in Petitioner’s response, and shown on the Los Angeles 13 Superior Court’s official website, www.lacourt.org/criminalcasesummary, in case number SA087131, 14 Petitioner has filed habeas petitions in state court on April 27, 2018; 15 August 10, 2018; and August 17, 2018. Additionally, there are various notations of “Court Consideration”, in this same case number, on 16 various dates in December 2018, February 2019, April 2019, and May 17 2019. www.lacourt.org/criminalcasesummary. 18 There is no indication from the California court websites that the issues have been presented to the California Supreme Court on 19 Petitioner’s behalf and Petitioner states, in his Petition, that he has not 20 filed any petition for writ of habeas corpus with respect to his conviction and judgment with the California Supreme Court. ECF No. 1, Petition 21 at 4. 22 ECF No. 5, Second OSC at 2. 23 The Second OSC noted: 24 Generally, before a federal court may grant habeas relief to a state 25 prisoner, the prisoner must exhaust his remedies in state court. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). That means, in cases 26 where a petitioner was convicted in California state court, the petitioner 27 must present the federal claims that he is raising in a federal habeas not grant habeas relief to a petitioner unless the individual has first 1 exhausted his state court remedies by fully and fairly presenting each 2 claim to the highest state court. Libberton v. Ryan, 583 F.3d 1147, 1164 3 (9th Cir. 2009), cert. denied, 560 U.S. 979 (2010). A claim has not been fairly presented unless the petitioner has described in the state court 4 proceedings both the operative facts and the federal legal theory on 5 which the claim is based. See Duncan v. Henry, 513 U.S. 364 (1995). Here, it appears that Petitioner filed several state habeas 6 petitions with the California Court of Appeal, the first of which was 7 summarily denied on May 22, 2017, and what appears to be several 8 habeas petitions with the California trial courts, which are called Superior Courts. There is no information that the Court could find or 9 that was provided to show that Petitioner has filed any state habeas 10 petition with the California Supreme Court, much less raising the particular grounds that he raises here. Additionally, there is no 11 indication that Petitioner appealed his direct appeal to the California 12 Supreme Court. Finally, Petitioner also admits this in his Petition. Without raising these issues with the California Supreme Court 13 first, this Court cannot find that the habeas grounds have been 14 exhausted and the Petition is subject to being dismissed, without 15 prejudice. 16 Id. at 2-3. 17 Here, Petitioner presents no arguments or evidence in his filings that show 18 that Petitioner has exhausted his State court remedies. Therefore, for the reasons 19 discussed previously, and set forth in the Court’s First and Second OSC, the Court 20 finds that dismissal of Petitioners claims, without prejudice, is warranted in this 21 case because Petitioner has failed to demonstrate that his claims have been 22 exhausted in the State courts. 23 B. Case Is Dismissed For Failure To Prosecute And Follow Court 24 Orders. 25 It is well established that district courts have sua sponte authority to dismiss 26 actions for failure to prosecute or to comply with court orders. See Fed. R. Civ. P. 27 41(b); Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (stating standard 1 Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) 2 (stating courts may dismiss an action under Federal Rule of Civil Procedure 41(b) 3 sua sponte for a plaintiff’s failure to prosecute or comply with the Federal Rules of 4 Civil Procedure or the court’s orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 5 (9th Cir. 1992) (ordering dismissal for failure to comply with court orders). 6 In deciding whether to dismiss for failure to prosecute or comply with court 7 orders, a district court must consider five factors: “‘(1) the public’s interest in 8 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) 9 the risk of prejudice to the defendants; (4) the public policy favoring disposition of 10 cases on their merits; and (5) the availability of less drastic sanctions.’” Omstead, 11 594 F.3d at 1084 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 12 1986)). 13 Here, the first two factors—public interest in expeditious resolution of 14 litigation and the court’s need to manage its docket—weigh in favor of dismissal. 15 Petitioner has failed to respond to Court orders and it has been over six months 16 since Petitioner’s last filing deadline expired. This failure to prosecute and follow 17 court orders hinders the Court’s ability to move this case toward disposition and 18 suggests Petitioner does not intend to litigate this action diligently. See Omstead, 19 594 F.3d at 1084. 20 The third factor—prejudice to Respondent—does not weigh in favor of 21 dismissal because Respondent has not yet been served in this case. Nevertheless, 22 the other factors combine to weigh in favor of dismissal. See In re Eisen, 31 F.3d 23 1447, 1452-53 (9th Cir. 1994) (‘[T]he failure to prosecute diligently is sufficient by 24 itself to justify a dismissal, even in the absence of a showing of actual prejudice to 25 the defendant.’” (citation omitted)). 26 The fourth factor—public policy in favor of deciding cases on the merits— 27 ordinarily weighs against dismissal. However, it is Petitioner’s responsibility to 1 evasive tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). 2 Petitioner has not met this responsibility despite having been: (1) instructed on his 3 responsibilities; (2) granted sufficient time in which to discharge them; and (3) 4 warned of the consequences of failure to do so. See ECF No. 5, Second OSC. 5 Under these circumstances, the policy favoring resolution of disputes on the merits 6 does not outweigh Petitioner’s failure to obey Court orders or to file responsive 7 documents within the time granted. 8 The fifth factor—availability of less drastic sanctions—also weighs in favor 9 of dismissal. The Court cannot move the case toward disposition without 10 Petitioner’s compliance with Court orders or participation in this litigation. 11 Petitioner has shown he is either unwilling or unable to comply with Court orders 12 by failing to file responsive documents or otherwise cooperate in prosecuting this 13 action. Specifically, Petitioner has not filed any papers in this case for over six 14 months, including his response to the Court’s Second OSC. 15 Accordingly, because: (1) Petitioner’s claims appear to be unexhausted; (2) 16 four out of the five Omstead factors weigh in favor of dismissal; (3) it appears that 17 Petitioner has abandoned this litigation; and (4) Petitioner has defied Court orders, 18 the Court DENIES the Petition and DISMISSES this case, without prejudice. 19 C. Certificate Of Appealability Is Denied. 20 Under the Anti-Terrorism and Effective Death Penalty Act of 1996 21 (“AEDPA”), a state prisoner seeking to appeal a district court’s final order in a 22 habeas corpus proceeding must obtain a Certificate of Appealability (“COA”) 23 from the district judge or a circuit judge. 28 U.S.C. § 2253(c)(1)(A). A COA may 24 issue “only if the applicant has made a substantial showing of the denial of a 25 constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard 26 by demonstrating that jurists of reason could disagree with the district court’s 27 resolution of his constitutional claims or that jurists could conclude the issues 1 | presented are adequate to deserve encouragement to proceed further.” Miller-E] 2 | v. Cockrell, 537 U.S. 322, 327 (2003). 3 When the Court dismisses a petition on procedural grounds, it must issue a 4 | COA if the petitioner shows: (1) “that jurists of reason would find it debatable 5 | whether the petition states a valid claim of the denial of a constitutional right,” and 6 | (2) “that jurists of reason would find it debatable whether the district court was 7 | correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000). 8 Here, the Court is dismissing the Petition without prejudice, in part, because 9 | the claims are unexhausted. Because of this problem with the Petition, Petitioner 10 | cannot make the requisite showing that jurists of reason would find it debatable 11 | whether the district court was correct in its procedural ruling. 12 Il. ORDER 13 Based on the foregoing, IT IS ORDERED THAT: 14 1. The Petition is DENIED; 15 2. Judgment be entered DISMISSING the action without prejudice; and 16 3. A Certificate of Appealability is DENIED. 17 18 DATED: February 11, 2020 / ) Honorable Dale Fischer — 20 UNITED STATES DISTRICT JUDGE 21 22 33 Presented by: 24 AW pep

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