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Diskin v. Salmonson

United States District Court, D. Montana, Billings Division

March 21, 2018

JOSHUA DISKIN, Petitioner,
v.
JAMES SALMONSON, Respondent.

          ORDER AND FINDINGS ANDRECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Timothy J. Cavan United States Magistrate Judge

         This case comes before the Court on Petitioner Joshua Diskin's application for writ of habeas corpus under 28 U.S.C. §2254, filed January 31, 2018. Diskin is a state prisoner proceeding pro se.

         I. Background

         Diskin was one of a group of petitioners that joined in filing what they characterized as an “En Masse Petition for Writ of Habeas Corpus as per 28 U.S.C. § 2254 and Rule 20(a) and 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 20-34.

         Diskin, 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 2-5). 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. Diskin did not respond to this Court's order.

         i. Motion for Leave to Proceed in Forma Pauperis

         Diskin has moved this Court to be granted in forma pauperis status. (Doc. 3). Because there is no reason to delay this matter further, Diskin's motion will be GRANTED.

         ii. Supplement to Petition

         In a Supplement to his Petition, Diskin asks this Court to dismiss a Sexual Intercourse without Consent conviction handed down in Montana's Thirteenth Judicial District Court, Yellowstone County, in Cause No. DC-14-0264. (Doc. 4 at 1).[1] The argument is premised upon what Diskin believes to be a faulty and unconstitutional state criminal charging process utilized in felony prosecutions. Id.[2] Diskin contends he was entitled to be prosecuted either following the empaneling of a grand jury or a preliminary probable cause hearing. Id.

         But this Court is not able to provide Diskin 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 Diskin. To the extent that the Supplement (Doc. 4) is construed as a Motion to Dismiss, the motion is DENIED.

         iii. 28 U.S.C. § 2254 Petition/Failure to Prosecute

         As set forth above, Diskin 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. Diskin failed to timely respond to this Court's order.

         The 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).

         In 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. Diskin, 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 ...


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