1 J S - 6
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 ROMONT HAGAN, Case No. 5:20-01151 FMO (ADS)
11 Petitioner,
12 v. ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS 13 THE PEOPLE OF STATE OF CORPUS CALIFORNIA, 14 Respondent. 15 16 I. INTRODUCTION 17 Pending before the Court is a Petition for Writ of Habeas Corpus by a Person in 18 State Custody (“Petition”) filed by petitioner Romont Hagan (“Petitioner”). [Dkt. No. 1]. 19 On August 14, 2020, the Court issued an Order to Show Cause why the Petition should 20 not be dismissed because the Petition appears untimely and wholly unexhausted, and 21 Petitioner did not pay the filing fee or file a complete Request to Proceed In Forma 22 Pauperis. [Dkt. No. 5]. Petitioner did not file a response to the Order to Show Cause. 23 For this reason, the case must be dismissed. 24 1 II. FAILURE TO PROSECUTE AND COMPLY WITH COURT ORDERS 2 The case must be dismissed because Petitioner has failed to prosecute this habeas 3 petition and comply with court orders. On August 14, 2020, the Court ordered 4 Petitioner to show cause why the Court should not dismiss this action because Petitioner 5 did not pay the court filing fee or file an application to proceed in forma pauperis and
6 the Petition appears untimely and wholly unexhausted. [Dkt. No. 5]. The Order 7 expressly cautioned Petitioner that failure to respond by September 4, 2020 would 8 result in a recommendation from the Magistrate Judge that the action be dismissed 9 pursuant to Federal Rule of Civil Procedure 41(b). [Id., p. 7]. As of the date of this 10 Order, Petitioner has not responded to the Order to Show Cause. 11 Petitioner’s failure to respond despite a Court order to do so reflects a lack of 12 prosecution of the case and failure to comply with the Court’s orders. In Carey v. King, 13 856 F.2d 1439 (9th Cir. 1988), the Ninth Circuit cited the following factors as relevant to 14 the Court’s determination of whether to dismiss an action for failure to prosecute: 15 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 16 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy
17 favoring disposition of cases on their merits; and (5) the availability of less drastic 18 sanctions.” Id. at 1440. 19 Upon consideration of the five Carey factors, the Court finds that Petitioner's 20 failure to prosecute his case and failure to comply with the Court’s Orders warrant 21 dismissal. The first two Carey factors—the public's interest in expeditiously resolving 22 this litigation and the Court's interest in managing the docket—weigh in favor of 23 dismissal. The Court cannot hold this case in abeyance indefinitely awaiting Petitioner's 24 response to the Court's directive. The third factor, risk of prejudice to Respondent, also 1 weighs in favor of dismissal since a presumption of injury arises from the occurrence of 2 unreasonable delay in prosecuting an action. Anderson v. Air West, Inc., 542 F.2d 522, 3 524 (9th Cir. 1976). The fourth factor, the public policy favoring disposition of cases on 4 their merits, is greatly outweighed by the factors in favor of dismissal. 5 Furthermore, Petitioner has already been cautioned of the consequences of his
6 failure to prosecute and ordered to show cause why the action should not be dismissed. 7 Petitioner has been afforded the opportunity to do so yet has not responded. No 8 sanction lesser than dismissal is feasible here. Thus, dismissal of this action is 9 warranted under Federal Rule of Civil Procedure 41(b) and Local Rule 7-12. 10 III. PETITIONER IS NOT ENTITLED TO RELIEF
11 Under Rule 4 of the Rules Governing Section 2254 Cases, this court is required to 12 conduct a preliminary review of all petitions for writ of habeas corpus filed by state 13 prisoners. Pursuant to Rule 4, this court must summarily dismiss a petition if it “plainly 14 appears from the petition and any attached exhibits that the petitioner is not entitled to 15 relief in the district court.” Here, it appears from the face of the Petition that Petitioner 16 is not entitled to federal habeas relief because the Petition is untimely and wholly 17 unexhausted. 18 A. The Petition is Untimely 19 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes 20 a one-year limitation period for a state prisoner to file a federal habeas petition. 21 28 U.S.C. § 2244(d)(1); see also Wall v. Kholi, 562 U.S. 545, 550 (2011); Jimenez v. 22 Quarterman, 555 U.S. 113, 114 (2009). The limitation period begins to “run from the 23 latest of” four specified dates, including “the date on which the judgment became final 24 by the conclusion of direct review or the expiration of the time for seeking such review.” 1 28 U.S.C. § 2244(d)(1)(A). The period of direct review for the purposes of AEDPA’s 2 limitation period “includes the period within which a petitioner can file a petition for a 3 writ of certiorari from the United States Supreme Court.” Bowen v. Roe, 188 F.3d 1157, 4 1158-59 (9th Cir. 1999); see Sup. Ct. R. 13 (allowing a petition for writ of certiorari 5 seeking review of a judgment of a state court of last resort to be filed within ninety days
6 after the entry of the judgment). 7 Here, the Petition is facially untimely. Petitioner alleges he was convicted and 8 sentenced on February 1, 2017. [Dkt. No. 1, pp. 1-2]. Petitioner then filed a direct 9 appeal to the California Court of Appeal, which was eventually denied on July 3, 2018. 10 See California Appellate Courts Case Information 2nd Appellate District, 11 http://appellatecases.courtinfo.ca.gov. Petitioner did not file a further appeal to the 12 California Supreme Court. [Dkt. No. 1, pp. 4-5]. His conviction became final thirty days 13 later on August 2, 2018. See Cal. Rules of Court 8.264(b), 8.500(e). Since the instant 14 Petition was not filed until June 4, 2020, it appears to be untimely. Furthermore, from 15 the face of the Petition, it does not appear that Petitioner has any basis for contending 16 that he is entitled to a later trigger date for the statute of limitations, nor that he is
17 entitled to statutory or equitable tolling. See 28 U.S.C. §§ 2244(d)(1)(B)-(D), (2). 18 B. The Petition Appears to be Wholly Unexhausted 19 The exhaustion of state court remedies is a prerequisite to the granting of a 20 petition for writ of habeas corpus. 28 U.S.C. § 2244(b)(1). “Under the exhaustion 21 requirement, a habeas petitioner challenging a state conviction must first attempt to 22 present his claim in state court.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see also 23 O’Sullivan v. Boerckel, 526 U.S. 838
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1 J S - 6
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10 ROMONT HAGAN, Case No. 5:20-01151 FMO (ADS)
11 Petitioner,
12 v. ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS 13 THE PEOPLE OF STATE OF CORPUS CALIFORNIA, 14 Respondent. 15 16 I. INTRODUCTION 17 Pending before the Court is a Petition for Writ of Habeas Corpus by a Person in 18 State Custody (“Petition”) filed by petitioner Romont Hagan (“Petitioner”). [Dkt. No. 1]. 19 On August 14, 2020, the Court issued an Order to Show Cause why the Petition should 20 not be dismissed because the Petition appears untimely and wholly unexhausted, and 21 Petitioner did not pay the filing fee or file a complete Request to Proceed In Forma 22 Pauperis. [Dkt. No. 5]. Petitioner did not file a response to the Order to Show Cause. 23 For this reason, the case must be dismissed. 24 1 II. FAILURE TO PROSECUTE AND COMPLY WITH COURT ORDERS 2 The case must be dismissed because Petitioner has failed to prosecute this habeas 3 petition and comply with court orders. On August 14, 2020, the Court ordered 4 Petitioner to show cause why the Court should not dismiss this action because Petitioner 5 did not pay the court filing fee or file an application to proceed in forma pauperis and
6 the Petition appears untimely and wholly unexhausted. [Dkt. No. 5]. The Order 7 expressly cautioned Petitioner that failure to respond by September 4, 2020 would 8 result in a recommendation from the Magistrate Judge that the action be dismissed 9 pursuant to Federal Rule of Civil Procedure 41(b). [Id., p. 7]. As of the date of this 10 Order, Petitioner has not responded to the Order to Show Cause. 11 Petitioner’s failure to respond despite a Court order to do so reflects a lack of 12 prosecution of the case and failure to comply with the Court’s orders. In Carey v. King, 13 856 F.2d 1439 (9th Cir. 1988), the Ninth Circuit cited the following factors as relevant to 14 the Court’s determination of whether to dismiss an action for failure to prosecute: 15 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 16 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy
17 favoring disposition of cases on their merits; and (5) the availability of less drastic 18 sanctions.” Id. at 1440. 19 Upon consideration of the five Carey factors, the Court finds that Petitioner's 20 failure to prosecute his case and failure to comply with the Court’s Orders warrant 21 dismissal. The first two Carey factors—the public's interest in expeditiously resolving 22 this litigation and the Court's interest in managing the docket—weigh in favor of 23 dismissal. The Court cannot hold this case in abeyance indefinitely awaiting Petitioner's 24 response to the Court's directive. The third factor, risk of prejudice to Respondent, also 1 weighs in favor of dismissal since a presumption of injury arises from the occurrence of 2 unreasonable delay in prosecuting an action. Anderson v. Air West, Inc., 542 F.2d 522, 3 524 (9th Cir. 1976). The fourth factor, the public policy favoring disposition of cases on 4 their merits, is greatly outweighed by the factors in favor of dismissal. 5 Furthermore, Petitioner has already been cautioned of the consequences of his
6 failure to prosecute and ordered to show cause why the action should not be dismissed. 7 Petitioner has been afforded the opportunity to do so yet has not responded. No 8 sanction lesser than dismissal is feasible here. Thus, dismissal of this action is 9 warranted under Federal Rule of Civil Procedure 41(b) and Local Rule 7-12. 10 III. PETITIONER IS NOT ENTITLED TO RELIEF
11 Under Rule 4 of the Rules Governing Section 2254 Cases, this court is required to 12 conduct a preliminary review of all petitions for writ of habeas corpus filed by state 13 prisoners. Pursuant to Rule 4, this court must summarily dismiss a petition if it “plainly 14 appears from the petition and any attached exhibits that the petitioner is not entitled to 15 relief in the district court.” Here, it appears from the face of the Petition that Petitioner 16 is not entitled to federal habeas relief because the Petition is untimely and wholly 17 unexhausted. 18 A. The Petition is Untimely 19 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes 20 a one-year limitation period for a state prisoner to file a federal habeas petition. 21 28 U.S.C. § 2244(d)(1); see also Wall v. Kholi, 562 U.S. 545, 550 (2011); Jimenez v. 22 Quarterman, 555 U.S. 113, 114 (2009). The limitation period begins to “run from the 23 latest of” four specified dates, including “the date on which the judgment became final 24 by the conclusion of direct review or the expiration of the time for seeking such review.” 1 28 U.S.C. § 2244(d)(1)(A). The period of direct review for the purposes of AEDPA’s 2 limitation period “includes the period within which a petitioner can file a petition for a 3 writ of certiorari from the United States Supreme Court.” Bowen v. Roe, 188 F.3d 1157, 4 1158-59 (9th Cir. 1999); see Sup. Ct. R. 13 (allowing a petition for writ of certiorari 5 seeking review of a judgment of a state court of last resort to be filed within ninety days
6 after the entry of the judgment). 7 Here, the Petition is facially untimely. Petitioner alleges he was convicted and 8 sentenced on February 1, 2017. [Dkt. No. 1, pp. 1-2]. Petitioner then filed a direct 9 appeal to the California Court of Appeal, which was eventually denied on July 3, 2018. 10 See California Appellate Courts Case Information 2nd Appellate District, 11 http://appellatecases.courtinfo.ca.gov. Petitioner did not file a further appeal to the 12 California Supreme Court. [Dkt. No. 1, pp. 4-5]. His conviction became final thirty days 13 later on August 2, 2018. See Cal. Rules of Court 8.264(b), 8.500(e). Since the instant 14 Petition was not filed until June 4, 2020, it appears to be untimely. Furthermore, from 15 the face of the Petition, it does not appear that Petitioner has any basis for contending 16 that he is entitled to a later trigger date for the statute of limitations, nor that he is
17 entitled to statutory or equitable tolling. See 28 U.S.C. §§ 2244(d)(1)(B)-(D), (2). 18 B. The Petition Appears to be Wholly Unexhausted 19 The exhaustion of state court remedies is a prerequisite to the granting of a 20 petition for writ of habeas corpus. 28 U.S.C. § 2244(b)(1). “Under the exhaustion 21 requirement, a habeas petitioner challenging a state conviction must first attempt to 22 present his claim in state court.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see also 23 O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[T]he exhaustion doctrine is designed 24 to give the state courts a full and fair opportunity to resolve federal constitutional claims 1 before those claims are presented to the federal courts.”). The Court may raise the 2 failure to exhaust issue sua sponte and may summarily dismiss on these grounds. See 3 Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir. 1988); see also Cartwright v. Cupp, 650 4 F.2d 1103, 1104 (9th Cir. 1992) (“In habeas corpus cases . . . federal courts may consider 5 sua sponte whether the defendant has exhausted state remedies . . . .”).
6 As a matter of comity, a federal court will not entertain a habeas petition unless 7 the petitioner has exhausted the available state judicial remedies on every ground for 8 relief presented in the petition. See Rose v. Lundy, 455 U.S. 509, 518-22 (1982). A 9 petitioner has the burden of demonstrating that he has exhausted available state 10 remedies. See, e.g., Cartwright, 650 F.2d at 1104. To satisfy the exhaustion 11 requirement, a habeas petitioner must “fairly present federal claims to the state courts 12 in order to give the State the opportunity to pass upon and correct alleged violations of 13 its petitioners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365-66 (1995); see also 14 Ybarra v. McDaniel, 656 F.3d 984, 991 (9th Cir. 2011) (explaining that a “claim has been 15 exhausted if the state courts have in fact ruled on its merits”). 16 Review of the Petition reflects that Petitioner did not fully exhaust his claims in
17 state court. First, the Petition states that Petitioner appealed the judgment of conviction 18 to the California Court of Appeal but did not subsequently appeal to the California 19 Supreme Court, due to advice from his appellate counsel. [Dkt. No. 1, pp. 2-3]. Second, 20 a review of the California Appellate Courts Case Information website did not reveal any 21 records of a direct appeal to the California Supreme Court or a prior state habeas 22 petition filed by Petitioner in either the California Court of Appeal or California 23 Supreme Court. See California Appellate Courts Case Information, 24 http://appellatecases.courtinfo.ca.gov. Therefore, it appears from the face of the 1 Petition that Petitioner has failed to meet his burden of demonstrating that he has fully 2 exhausted his available state remedies. For these reasons, it appears that he is not 3 entitled to habeas relief and dismissal with prejudice is appropriate. 4 IV. PETITIONER FAILED TO PAY THE REQUIRED FILING FEE OR 5 SUBMIT A COMPLETED IFP REQUEST
6 The case must be dismissed because Petitioner did not pay the required filing fee 7 or submit a completed Request to Proceed In Forma Pauperis (“IFP Request”). [Dkt. 8 No. 1, p. 1]. Pursuant to 28 U.S.C. § 1915(a), a prisoner seeking to proceed with a civil 9 action without prepayment of fees must submit “an affidavit that includes a statement of 10 all assets such prisoner possesses that the person is unable to pay such fees” as well as “a 11 certified copy of the trust fund account statement (or institutional equivalent) for the 12 prisoner for the 6-month period immediately preceding the filing of the complaint or 13 notice of appeal, obtained from the appropriate official of each prison at which the 14 prisoner is or was confined.” 15 Petitioner did not prepay the required fee, nor did he file an IFP Request with a 16 supporting affidavit or a certified copy of the trust fund account statement. On
17 August 14, 2020, the Court issued an Order to Show Cause notifying Petitioner that if he 18 wished to proceed with the Petition, he must (1) pay the $5.00 filing fee or (2) file a 19 completed Request to Proceed In Forma Pauperis with the required supporting 20 documentation. However, Petitioner did not respond to the Order to Show Cause. 21 22 23 24 1 V. CONCLUSION 2 IT IS THEREFORE ORDERED that this action be summarily dismissed with 3 prejudice pursuant to Federal Rule of Civil Procedure 41(b) and Central District of 4 California Local Rule 7-12. 5 IT IS SO ORDERED.
6 7 Dated: October 6, 2020 _________/s/____________________ THE HONORABLE FERNANDO M. OLGUIN 8 United States District Judge
9 Presented by:
10 ___/s/ Autumn D. Spaeth_____________ THE HONORABLE AUTUMN D. SPAETH 11 United States Magistrate Judge
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