United States District Court, D. Montana, Billings Division
ORDER AND FINDINGS ANDRECOMMENDATION OF UNITED STATES
Timothy J. Cavan United States Magistrate Judge
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.
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.
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.
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, Diskin's motion will be
Supplement to Petition
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
The argument is premised upon what Diskin believes to be a
faulty and unconstitutional state criminal charging process
utilized in felony prosecutions. Id. Diskin contends
he was entitled to be prosecuted either following the
empaneling of a grand jury or a preliminary probable cause
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.
28 U.S.C. § 2254 Petition/Failure to Prosecute
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.
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. 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 ...