United States District Court, D. Montana, Billings Division
FINDINGS AND RECOMMENDATION OF UNITED STATES
TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE
case comes before the Court on Petitioner Anthony Joe
Leyva's application for writ of habeas corpus under 28
U.S.C. §2254, Leyva is a state prisoner proceeding pro
petition challenges his state conviction for Burglary handed
down following Leyva's guilty plea in Montana's
Thirteenth Judicial District, Yellowstone County. Following
review of Leyva's Petition, the Court determined the
claims presented appeared to be time-barred and procedurally
defaulted. Leyva was ordered to show cause as to why his
petition should not be dismissed and was advised of the ways
in which he might make such a showing. (Doc. 3 at 5-9). Leyva
sought an extension of time to file his response; the request
was granted. See, (Docs. 4 &5.) Instead of filing his
response as directed, Leyva filed a request for counsel.
(Doc. 6.) Leyva also advised the Court he was having
difficulty obtaining various records from the prison. (Doc.
7.) Leyva was again provided additional time to file his
response. (Doc. 8.) Leyva has yet to respond to this
Court's Order within the requisite time period.
Dismissal for Failure to Prosecute
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
public's interest in expeditious resolution of litigation
always favors dismissal." Yourish v. California
Amplifier, 191 F.3d 983, 990 (9th Cir. 1999).
Despite being provided adequate time, Leyva has failed to
file his response. This factor weighs in favor of dismissal.
the second factor supports dismissal. "The trial judge
is in the best position to determine whether the delay in a
particular case interferes with docket management and the
public interest." Pagtalunan v. Galaza, 291
F.3d 639 (9th Cir. 2002). The Court cannot manage
its docket if Leyva continues to delay and/or refuse to
comply with Court orders, Leyva's case has consumed
judicial resources and time that could have been better spent
on other matters. Therefore, this factor favors dismissal.
third factor requires the Court to weigh the risk of
prejudice to the Defendants. "To prove prejudice, a
defendant must establish that plaintiffs actions impaired
defendant's ability to proceed to trial or threatened to
interfere with the rightful decision of the case."
Malone v. United States Postal Service, 833 F.2d
128, 131 (9th Cir. 1987). Leyva's refusal to
comply with the Court's order makes prejudice a foregone
conclusion. The longer this matter sits, the more prejudice
Court has considered less drastic alternatives. Alternatives
may include "allowing further amended complaints,
allowing additional time, or insisting that appellant
associate experienced counsel." Nevijel v. North
Coast Life Insurance Co., 651 F.2d 671, 674
(9th Cir. 1981). Although less drastic
alternatives to dismissal should be considered, the Court is
not required to exhaust all such alternatives prior to
dismissal. Id. As set forth above, Leyva has been
granted filing extensions and been provided adequate time to
prepare his response. Yet Leyva has failed to respond to the
Court's show cause order. At this juncture, the Court can
envision no further alternatives to dismissal.
last factor weighs against dismissal because public policy
favors disposition of cases on their merits. Hernandez v.
City of El Monte, 138 F.3d 393, 399 (9th Cir.
1998). But in light of the other four factors favoring
dismissal, the weight of this factor is slight. The Court
will therefore recommend that this matter be dismissed for
failure to prosecute, pursuant to Fed. F. Civ. P. 41(b), for
failure to comply with the Court's order.
Certificate of Appealability
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 ...