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Russell v. Salmonson

United States District Court, D. Montana, Missoula Division

May 7, 2018

CLAYTON RUSSELL, Petitioner,
v.
JAMES SALMONSON, ATTORNEY GENERAL OF THE STATE OF MONTANA, Respondents.

          FINDINGS and RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          Jeremiah C. Lynch United States Magistrate Judge

         This case comes before the Court on Petitioner Clayton Russell's application for writ of habeas corpus under 28 U.S.C. § 2254. Russell is a state prisoner proceeding pro se.

         On March 13, 2018, following a review of Russell's filings, this Court determined Russell needed to provide additional information related to the nature of his claims and the factual basis underlying them. (Doc. 3 at 1). Russell was instructed what type of supplemental information the Court was seeking and was provided with an Amended Petition form to complete. Id. at 1-2. Russell was also advised that he would need to complete the Court's standard application to proceed in forma pauperis. Id. at 2. Russell was given until April 28, 2018, to complete and file the forms. Id. To date, Russell has failed to comply with this Court's show cause order of March 13, 2018, by filing an amended petition, requesting an extension of time to do so, or otherwise responding.

         i. Motion to proceed in forma pauperis

         Because there is no reason to delay this matter further, this Court will construe Russell's "Motion to Waive Filing Fee" as a motion to proceed in forma pauperis. Russell's motion (Doc. 2) will be GRANTED.

         ii. 28 U.S.C. § 2254 petition

         This action should be dismissed based upon Russell's failure to comply with the Court's order and/or for failure to prosecute. See Fed.R.Civ.P. 41(b); Link v. Wabash Railroad Co., 370 U.S. 626, 629-30 (1962); Pagtalunan v. Galaza, 291 F.3d 641-45 (9*01.2002).

         In reaching this determination, the Court has weighed the relevant 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 (9th Cir. 1988); see also Pagtalunan, 291 F.3d at 642.

         iii. Certificate of Appealability

         "The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11(a), Rules governing § 2254 Proceedings. A COA should issue as to those claims on which a petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The standard is satisfied if "jurists of reason could disagree with the district court's resolution of [the] constitutional claims" or "conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Where a claim is dismissed on procedural grounds, the court must also decide whether "jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

         The claims Russell attempts to advance do not appear to make a substantial showing that he was deprived of a constitutional right. Further, Russell has not complied with this Court's order to explain or clarify his claims. No. reasonable jurist would suggest the Court go forward with the case without Russell's participation. A certificate of appealability should be denied because reasonable jurists would find no reason to encourage further proceedings.

         Based on the foregoing, the Court enters the following:

         ORDER

         Russell's Motion to Waive Filing Fee/proceed in forma pauperis (Doc. 2) is GRANTED. The Clerk of Court ...


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