Opinion
CV 01-4663 GLT (AN)
10-19-2001
ST. MICHAEL DOC BALZARINI, Petitioner, v. STEVE CAMBRIA, Interim Director, et al., Respondents.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ARTHUR NAKAZATO UNITED STATES MASTSTRATE JUDGE.
This Report and Recommenddaion is submitted to the Honorable Gary L. Taylor, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District o California.
I. Introduction
Petitioner St.. Michael Doc Balzarini ("petitioner") has failed, without good cause, to diligently prosecute this lawsuit and comp y wit a Court order directing him to show cause why the Amended Petition should not be dismissed as time-barred. Additionally, the First Amended Petition is barred by the statute of limitations. Accordingly, the magistrate judges recommends that judgment be entered dismissing the action with prejudice.
II. Background and Proceedings
On May 24, 2001, petitioner, proceeding pro se, filed a Petition for Writ of Habeas Corpus (the "Petition"). On May 31, 2001, the Court summarily dismissed the Petition without prejudice and with leave to am end because it was not submitted on the Court's approved form for habeas petitions and petitioner failed to set forth facts showing he had exhausted available state judicial remedies. [See Memorandum and Order filed June 1 2000.]
On June 18, 2001, petitioner filed a First Amended Petition challenging his conviction on April 25, 1995, of burglary, robbery, and receiving stolen property, plus enhancements, for which he received a sentence of 65 years to life in prison. [First Am ended Petition at 3.]
On June 29, 2001, the Court issued an Order to Show Cause re Dismissal of Action as Tim e-Barred (the "O S.C. "). Noting that it appeared from the face of the First Amended Petition that petitioner's claim s were time-barred under 28 U.S.C. § 2244(d), the Court ordered petitioner to "file a response with the Court showing good cause why this action should not be dismissed as time-barred." [OSC at 6.] The OSC also contained the following admonition:
Petitioner is advised and cautioned that the failure to respond to this Order by July 25, 2001, will be construed as petitioner's consent to the Court's dismissing the action as time-barred and for want of prosecution.[Id. (emphasis in original).]
Although petitioner requested and received an extension of time until August 27, 2001, to file a response to the OSC [see Minute Order dated July 16, 2001], to date, petitioner has failed to file a response to the OSC.
III. Discussion
A. Rule 41(b) of the Federal Rules of Civil Procedure Authorizes Dismissal of the Action for Petitioner's Failure to Com ply with a Court Order.
"Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to com ply with any order of the court." Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert, denied, 506 U.S. 915, 113 S.Ct. 321, 121 L.Ed.2d 242 (1992); see also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.), cert, denied, 516 U.S. 838, 116 S.Ct. 119, 113 L.Ed.2d 69 (1995) (affirming district court's dismissal of pro se prisoner's civil rights action pursuant to district court local rule when the plaintiff failed to file an opposition to the defendants' motion to dismiss). Before dismissing the action, "the district court must weigh five factors including: '(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 alternatives.'" Ferdik v. Bonzelet, supra, 963 F.2d at 1260-61, quoting Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir.), cert, denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986) and Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986).
Consideration of the five factors set forth in Ferdik weighs in favor of dismissal of the action. With regard to the first two factors, the. Ninth Circuit has stated that [i]t is incumbent upon us to preserve the district courts power to manage their dockets without being subject to the endless vexatious noncompliance of litigants like [petitioner]." Ferdik v. Bonzelet, supra, 963 F.2d at 1261. Here, despite the Court s explicit warning and advisement as to the consequences for failing to respond to the OSC by the extended August 27, 2001, deadline, petitioner failed to respond. "Pro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
As for the third and fourth factors, "[a]lthough there is indeed a policy favoring disposition on the merits, it is the responsibility Of the moving party to move towards that disposition at a reasonable pace, and to refrain from dilatory and evasive tactics." Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991). "[T]he failure to prosecute diligently is sufficient by itself to justify a dismissal, even in the absence of a showing of actual prejudice to the defendant from the failure." Anderson v. Air West. Inc., 542 F.2d 522, 524 (9th Cir. 1976). "The law presumes injury from unreasonable delay." Id. Even if respondent has not been prejudiced by petitioner's failure to diligently prosecute this action, a proposition the Court by no means concedes, consideration of all five dismissal factors still weighs in favor of dismissal. See Ferdik v. Bonzelet, supra, 963 F.2d at 1263 (district court's dismissal of com plaint for failure to com ply with court order affirmed, even if the prejudice factor and the factor regarding the public policy favoring disposition on the merits both weighed against dismissal, where they did hot outweigh the other three factors that strongly supported dismissal)
Finally, less drastic alternatives, factor five, were tried and proved uneffective. The Court advised petitioner that failure to respond to the OSC would result in the dismissal of the action. ''[A] district court s warning to a party that his failure to obey the court's order will result in dismissal can satisfy the consideration of alternatives requirement. Ferdik v. Bonzelet, supra, 963 F.2d at 1262. The procedure employed by the Court constituted ah attempt at a less drastic sanction to that of outright dismissal. Id.
After careful consideration of all five dismissal factors, the Court concludes that dismissal is warranted.
B. Local Rule 41-1 Authorizes Dismissal for Petitioner's Failure to Prosecute the Action.
Local Rule 41-1 permits dismissal of an action, after notice, for want of prosecution. In the OSC, the Court notified petitioner I that a failure to timely respond would result in dismissal of the action. Petitioner filed no response. Therefore, dismissal is appropriate.
C. The First Amended Petition is Time-Barred.
1. One-Year Limitations Period.
The Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") created a one-year statute of limitations period for filing a federal habeas corpus petition. See 28 U.S.C. § 2244(d). The limitations period runs from the latest of
The AEDPA amendments apply to petitions filed in the federal courts after April 24, 1996, the date the AEDPA was enacted. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Jeffries v. Wood. 114 F.3d 1484 (9th Cir.), cert, denied, 522 U.S. 1008, 118 S.Ct. 586, 139 L.Ed.2d 423 (1997).
(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of the time for seeking such, review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claim s presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244 (d)(1).
2. Application of the Limitations Period to the Pending First Amended Petition.
The judgment in this case appears to have become final on June 24, 1997, 90 days after the California Supreme Court denied petitioner's petition for review on direct appeal and the time expired to file a petition for writ of certiorari in the United States Supreme Court. [First Am ended Petition at 4; Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999).] Under § 2244(d)(1)(A), the limitations period began to tun at that time and expired on June 24, 1998. Petitioner failed to commence the pending action until May 24, 2001. Thus, absent a finding that the limitations period was tolled, the First Am ended Petition is time-barred under § 2244 (d) (1) (A).
3. Tolling.
a. Statutory tolling.
The limitations period for filing federal habeas petitions maybe tolled during the time a state prisoner's properly-filed application for State post-conviction or other collateral review is pending. 28 U.S.C. § 2244 (d) (2).
Petitioner appears to have filed two sets of habeas petitions in the California Superior, Appellate, and Supreme Courts. The dates on which the first set of petitions were filed is not apparent from the face of the First Am ended Petition. However, the actual filing dates are immaterial because petitioner's first round of state habeas petitions ended on M arch 25, 1998, with the California Supreme Court's denial. [Petition at 5.] Therefore, even assuming, arguendo, that, under Nino v. Galaza, 183 F.3d 1003 (9th Cir. 1999), cert, denied, 529 U.S. 1104, 120 S.Ct. 1846, 146 L.Ed.2d 787 (2000), the statute of limitations was tolled the entire time from June 24, 1997, when petitioner's judgment became final, until April 24, 1998, when the California Supreme Court's denial of petitioner's state habeas petition became final, this action is still untimely. Assuming the limitations period commenced running on April 25, 1998, 31 days after the California Supreme Court denied the habeas petition, petitioner had one year, until April 25, 1999, to commence this action. He failed to do so. Accordingly, absent equitable tolling, the one-year limitations period expired on April 26, 1999, more than two years before petitioner commenced this action.
See Bunney v. Mitchell, 262 F.3D 973, 974 (9th Cir. 2001) (California Supreme Court's denial of habeas petition does not become final for statute of limitations purposes until 30 days after the filing of the denial).
In Nino n. Galaza, the Ninth Circuit "join[ed] the Tenth and Eleventh Circuits in concluding that the AEDPA statute of limitations is tolled for 'all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular post-conviction application.'" 183 F.3d at 1006, quoting Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999). The Nino court specifically held that "the statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects the petitioner's final collateral challenge." Id. (footnotes omitted).
See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (Fed.R.Civ.P. 6 (a), the general rule for counting tim e in federal courts, applies to calculation of AEDPA's one-year grace period).
Petitioner is not entitled to any statutory tolling for the time his second round of state habeas petitions was pending because the first of these petitions was hot filed in the San Bernardino County Superior Court until May 15, 2000, by which time the limitations period had already expired. See Webster v. Moore., 199 F.3d 1256, 1259 (11th Cir.), cert, denied, 531 U.S. 991, 121 S.Ct. 481, 148 L.Ed.2d 454 (2000) ("A state-court petition . . . that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled"); Rashid v. Khulmann, 991 F.Supp. 254, 259 (S.D.N.Y. 1998) (Section 2244(d)(2) cannot "'revive' the limitations period (i.e., restart the clock at zero); it can only serve to pause a clock that has not yet fully run. Once the limitations period is expired, collateral petitions can no longer serve to avoid the statute of limitations"); see also Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001) (time between filing of two habeas petitions with California Supreme Court not tolled).
b. Equitable tolling.
Although not available in most cases, equitable tolling may be applied to 28 U.S.C. § 2244(d) if "extraordinary circumstances" beyond petitioner's control made it impossible to file a petition on time. See Calderon v. U.S., Dist. Court for Cent. Dist. of Cal. (Beeler). 128 F.3d 1283, 1288-89 (9th Cir. 1997), as amended on denial of rhg. and suggestion for rhg. en banc, cert, denied, 522 U.S. 1099, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998), overruled in part on other grounds by Calderon v. U.S. Dist. Court for Cent. Dist. of Cal. (Kelly). 163 F.3d 530, 540 (9th Cir. 1998), cert, denied, 526 U.S. 1060, 119 S.Ct. 1377, 143 L.Ed.2d 535 (1999). However, nothing in the Petition or the First Am ended Petition indicates that any external forces kept petitioner from timely seeking habeas relief in federal court. Accordingly, equitable tolling does not apply.
IV. Recommendation
In accordance with the foregoing, IT IS RECOM M ENDED that the Court issue an order: (1) approving and adopting this Report and Recommendation; and (2) directing that judgment be entered dismissing the First Am ended Petition with prejudice.