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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 11 ANTHONY M. DELCI, Case No. 2:24-cv-07531-MRA-PD 12 Petitioner, ORDER DISMISSING 13

PETITION FOR FAILURE TO

v. 14 PROSECUTE

ROBERTO A. ARIAS,

15 16 Respondent. 17 18

19 I. Pertinent Procedural History and Petitioner’s Contentions 20 On September 3, 2024, Petitioner Anthony M. Delci, proceeding pro se, 21 filed a Petition for Writ of Habeas Corpus by a Person in State Custody 22 pursuant to 28 U.S.C. § 2254. [Dkt. No. 1.] Liberally construed, see Woods v. 23 Carey, 525 F.3d 886, 889-90 (9th Cir. 2008) (district courts are obligated to 24 liberally construe pro se litigant filings), the Petition states the following two grounds for relief concerning the denial of his resentencing petition: (1) The 25 superior court violated Petitioner’s Fifth, Sixth, and Fourteenth Amendment 26 rights by finding that he was guilty beyond a reasonable doubt of second- 27 degree murder as an aider and abettor, because that finding contravened the 28 1 jury’s acquittal on the first-degree murder count and its finding that a 2 principal did not personally use a firearm;1 and (2) Petitioner’s appointed 3 counsel deprived him of his Sixth Amendment right to effective assistance by 4 failing to present newly discovered evidence at the hearing on his 5 resentencing petition.2 [See Dkt. No. 1 at 5-24, 51-66, 101-26.] 6 On November 21, 2024, the Court issued an Order to Show Cause 7 (“OSC”) directed to Petitioner because the face of the Petition suggests that it 8 does not allege any claim that is cognizable on federal habeas review.3 [Dkt. 9 10 1 In connection with this claim, Petitioner asserts that the superior court committed several other errors in finding him ineligible for resentencing under California Penal 11 Code section 1170.95 and that there is no support in the record for that finding. [See Dkt. No. 1 at 18-22, 116-26.] He also asks this Court to conduct an independent 12 review to determine whether he is eligible for resentencing. [See Dkt. No. 1 at 21.] 13

14 2 The Petition asserts three ineffective-assistance claims, but the second two appear to be duplicative of the first. [See Dkt. No. 1 at 5-6, 20, 23-24, 51-66.] As explained 15 in the Order to Show Cause, any claim that counsel was ineffective in connection 16 with the hearing on Petitioner’s resentencing petition is not cognizable on federal habeas review. [See Dkt. No. 8 at 7-9.] The Supreme Court has never held that a 17 criminal defendant has a constitutional right to counsel in prosecuting a petition for resentencing under section 1170.95. Martinez v. Koenig, No. CV 20-8361-VBF 18 (JEM), 2021 WL 8015539, at *4 (C.D. Cal. Apr. 20, 2021) (collecting cases), accepted 19 by 2022 WL 1062072 (C.D. Cal. Apr. 4, 2022). To the contrary, it has explicitly noted that “[t]here is no constitutional right to an attorney in state post-conviction 20 proceedings,” and thus, “a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.” Coleman v. Thompson, 501 U.S. 722, 752 21 (1991) (citations omitted)). 22 3 As explained in the OSC, federal courts have routinely held that challenges to 23 denials of section 1170.95 resentencing petitions “pertain solely to the state court’s interpretation and application of state sentencing law and therefore are not 24 cognizable” on federal habeas review. Cole v. Sullivan, 480 F. Supp. 3d 1089, 1097 25 (C.D. Cal. 2020); see, e.g., Clemons v. Johnson, No. 2:22-cv-05719-MWF (AFM), 2023 WL 5184181, at *2 (C.D. Cal. June 16, 2023) (claims arising from denial of section 26 1170.95 resentencing petitions were not cognizable on federal habeas review), accepted by 2023 WL 5180324 (C.D. Cal. Aug. 10, 2023). [See Dkt. No. 8 at 5-7.] 27

28 1 No. 8.] Petitioner was warned that his failure to respond to the OSC by 2 January 3, 2025, would be construed as a concession on his part that the 3 claims were not cognizable on habeas review and that the Court would 4 dismiss the Petition. [Id. at 9.] The Court’s OSC was mailed to the address 5 listed on the Petition, which is California State Prison-Calipatria, in 6 Calipatria, California.4 [Id.] 7 To date, Petitioner has not responded to the Court’s OSC or otherwise 8 communicated with the Court about his case since September 2024. 9 Accordingly, the Petition is now subject to dismissal for Petitioner’s failure to 10 prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. 11 II. Discussion 12 Rule 41(b) grants district courts the authority to sua sponte dismiss 13 actions for failure to prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 629- 14 30 (1962). In determining whether dismissal for lack of prosecution is 15 warranted, a court must weigh several factors, including: (1) the public’s 16 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to defendants; (4) the availability of less 17 drastic sanctions; and (5) the public policy favoring the disposition of cases on 18 their merits. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Ferdik 19 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). Dismissal is appropriate 20 under the foregoing analysis “where at least four factors support dismissal ... 21 or where at least three factors ‘strongly’ support dismissal.” Hernandez v. 22 City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations omitted). 23 24

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26 4 According to the California Incarcerated Records & Information Search (“CIRIS”), Petitioner is housed at California State Prison-Calipatria. See 27 https://cdcr.ca.gov/search (search for “Delci” and “Anthony” and Petitioner’s CDCR # 28 BH2210) (last searched February 24, 2025.) 1 In this case, the first two factors – public interest in expeditious 2 resolution of litigation and the need to manage the Court’s docket – weigh in 3 favor of dismissal. Petitioner did not respond to the OSC. His failure to file a 4 response—or show good cause for his delay—prevents the Court from moving 5 this case toward disposition and shows that Petitioner does not intend to 6 litigate this action diligently. 7 Arguably, the third factor – prejudice to Respondent – does not counsel 8 in favor of dismissal because no viable pleading exists, and thus Respondent 9 is unaware that a case has been filed. However, the Ninth Circuit has held 10 that prejudice may be presumed from unreasonable delay. See In re Eisen, 31 11 F.3d 1447, 1452-53 (9th Cir. 1994); Moore v. Teflon Commc’ns. Corp., 589 F.2d 12 959, 967-68 (9th Cir. 1978). Petitioner’s inaction in this matter is an 13 unreasonable delay, given that the Court mailed the OSC to Petitioner and 14 has received no communication from him. In the absence of any explanation, 15 non-frivolous or otherwise, for Petitioner’s delay, the Court presumes 16 prejudice. See Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002) (presumption of prejudice can be rebutted by a non-frivolous 17 explanation); Pagtalunan, 291 F.3d at 642 (citing Yourish v. California 18 Amplifier, 191 F.3d 983, 991 (9th Cir. 1999)). 19 The fourth factor – the availability of less drastic sanctions – ordinarily 20 counsels against dismissal. The fifth factor – the general policy favoring 21 resolution on the merits – ordinarily weighs against dismissal. Pagtalunan, 22 291 F.3d at 643. It is, however, the responsibility of the moving party to move 23 the case toward disposition on the merits at a reasonable pace and to refrain 24 from dilatory and evasive tactics. Morris v. Morgan Stanley & Co., 942 F.2d 25 648, 652 (9th Cir. 1991). Because Petitioner has failed to participate in his 26 own lawsuit, it does not appear that retention of this case would increase the 27 likelihood of the matter being resolved on its merits. 28 I In sum, four out of the five factors support dismissal. The Court 2 || concludes that dismissal for failure to prosecute is warranted. 3 For the foregoing reasons, this action is dismissed without prejudice for 4 || failure to prosecute. 5 | ITIS SO ORDERED. 6 7 || Dated: February 28, 2025 g foe 9 on. Monica Ramirez Almadani 10 Unit¢éd States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28