United States District Court, D. Montana, Billings Division
ORDER AND FINDINGS AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
Timothy J. Cavan United States Magistrate Judge
case comes before the Court on Petitioner Cody Johnston's
application for writ of habeas corpus under 28 U.S.C.
§2254, filed January 29, 2018. Johnston is a state
prisoner proceeding pro se.
was one of a group of petitioners that joined in filing what
they characterized as an "En Masse Petition for Writ of
Habeas Corpus- 28 U.S.C. § 2254 as per Rule 23 of the
Federal Rules of Civil Procedure." (Doc. 2). The
"en masse" petitioners sought to challenge the
constitutionality of the criminal charging process utilized
against them by the State of Montana. Id. at 18-32.
and the additional petitioners, were notified that the Court
would not allow them to proceed as a group and that separate
cases would be opened for each. (Doc. 1 at 1-5). Petitioners
were then ordered to respond individually to advise the Court
whether or not they wished to proceed and, if so, petitioners
were directed to each complete the Court's standard
habeas form. Id. at 5-6. Johnston did not respond to
this Court's order.
Motion for Leave to Proceed in Forma Pauperis
has moved this Court to be granted in forma pauperis status.
(Doc. 3). Because there is no reason to delay this matter
further, Johnston's motion will be
Motion to Dismiss
asks this Court to dismiss Deliberate Homicide and Tampering
with Physical Evidence convictions handed down in
Montana's Seventh Judicial District Court, Richland
County, in Cause No. DC-15-92. (Doc. 4 at l). The argument is
premised upon what Johnston believes to be a faulty and
unconstitutional state criminal charging process.
Id. at 1-12. This Court is not able to provide Johnston
the relief sought. Federal district courts, as courts of
original jurisdiction, do not serve as appellate tribunals to
review errors allegedly committed by state courts. MacKay
v. Pfeil, 827 F.2d 540, 543 (9th Cir. 1987);
see also Atlantic Coast Line R. Co. v. Brotherhood of
Locomotive Engineers, 398 U.S. 281, 296
(1970)("lower federal courts possess no power whatever
to sit in direct review of state court decisions"). It
would be entirely inappropriate for this Court to review and
dismiss the state convictions as suggested by Johnston. The
Motion to Dismiss (Doc. 4) is DENIED.
28 U.S.C. § 2254 Petition/Failure to Prosecute
forth above, Johnston was ordered to advise the Court whether
or not he wished to proceed in this action and, if so, to
complete the Court's standard habeas form. Johnston
failed to timely respond to this Court's order.
Federal Rules of Civil Procedure apply in a habeas action to
the extent they are not inconsistent with the Rules Governing
Section 2254 Cases in the United States District Courts or
other applicable law. See Rule 11, Section 2254 Rules;
Mayle v. Felix, 545 U.S. 644, 654 (2005).
Fed.R.Civ.P. 41(b) authorizes the Court to dismiss an action
"[i]f the plaintiff fails to prosecute" the action.
The Court may dismiss a case on its own motion without
awaiting a defense motion. See, e.g., Link v. Wabash
Railroad Co., 370 U.S. 626, 633 (1962); Hells Canyon
Preservation Council v. United States Forest Serv., 403
F.3d 683, 689 (9th Cir. 2005).
determining whether Petitioner's failure to prosecute
warrants dismissal of the case, the Court must weigh 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
defendants; (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) (quoting Henderson
v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986)).
"The first two of these factors favor the imposition of
sanctions in most cases, while the fourth factor cuts against
a default or dismissal sanction. Thus the key factors are
prejudice and availability of lesser sanctions."
Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir.
public's interest in expeditious resolution of litigation
always favors dismissal." Yourish v. California
Amplifier,191 F.3d 983, 990 (9th Cir. 1999).
Johnston has failed to file his response within the ...