Case 5:18-cv-00907-JLS-MAA Document 70 Filed 02/03/22 Page 1 of 9 Page ID #:3186

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ULYSSES FRANKLIN MOORE, Case No. 5:18-cv-00907-JLS-MAA

JR.,

12 ORDER DISMISSING PETITION Petitioner, AND DISMISSING ACTION 13 WITHOUT PREJUDICE v. 14 GEORGE JAIME, Warden, 15 Respondent. 16 17 18 I. INTRODUCTION AND BACKGROUND 19 On April 30, 2018, the Court received and filed Petitioner Ulysses Franklin 20 Moore, Jr.’s (“Petitioner”) pro se Petition for Writ of Habeas Corpus by a Person in 21 State Custody pursuant to 28 U.S.C. § 2254 (“Petition”). (Pet., ECF No. 1.) The 22 Petition raised the following two claims: (1) a gang expert’s reliance on hearsay as 23 the basis for his opinion violated Petitioner’s Sixth Amendment Confrontation 24 Clause rights; and (2) the trial court’s limitations on defense evidence violated 25 Petitioner’s Sixth and Fourteenth Amendment rights to present a complete defense. 26 (Id. at 5–6.)1 27 1 Pinpoint citations of filings in this Order refer to the page numbers appearing in the 28 ECF-generated headers. Case 5:18-cv-00907-JLS-MAA Document 70 Filed 02/03/22 Page 2 of 9 Page ID #:3187

1 On September 5, 2019, the Court received and filed Petitioner’s First 2 Amended Petition (“FAP”). (FAP, ECF No. 38.) The FAP raised the following 3 seven claims: (1) a Sixth Amendment Confrontation Clause claim; (2) a Sixth 4 Amendment ineffective assistance of counsel claim based on former counsel’s 5 “failure to object at a critical stage of proceedings”; (3) another ineffective 6 assistance claim against trial and appellate counsel raising several sub-claims 7 including counsel’s failure to preserve evidence for DNA testing, failure to file a 8 Pitchess motion for the prosecutor’s gang expert, failure to identify perjury and 9 conflicting statements by prosecution witnesses, and failure to contest irrelevant 10 evidence or introduce helpful evidence; (4) a Double Jeopardy Clause claim 11 challenging Petitioner’s sentence because a single aggravating factor was used 12 against Petitioner twice; (5) a claim alleging misconduct by the investigating police 13 officers, resulting in the introduction of false identification evidence and exclusion 14 of favorable evidence; (6) prosecutorial misconduct, including introduction of false 15 evidence; and (7) trial judge abuse of discretion in permitting evidence. (Id. at 1–2, 16 4.) 17 The Court received and filed Petitioner’s operative Second Amended Petition 18 (“SAP”) on February 19, 2020. (SAP, ECF No. 47.) The SAP raised only one 19 claim: that the state courts violated Petitioner’s Fourteenth Amendment rights in 20 denying resentencing pursuant to California Senate Bill 1393. (Id. at 5.) 21 On March 4, 2020, Respondent filed a Motion to Dismiss the SAP as non- 22 cognizable on the ground that Petitioner’s resentencing claim relied only on state 23 law (“Motion to Dismiss”). (Mot. to Dismiss, ECF No. 48.) The case eventually 24 was dismissed on January 4, 2021 based on Petitioner’s failure to file an 25 Opposition. (January 4, 2021 Order, ECF No. 53.) However, on March 24, 2021, 26 the Court granted Petitioner’s January 20, 2021 Motion to Reopen. (See Mar. 24, 27 2021 Order, ECF No. 58; see also Jan. 20, 2021 Mot. to Reopen, ECF No. 55.) The 28

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1 Court ordered Petitioner to file his Opposition to the Motion to Dismiss by no later 2 than April 28, 2021. (Mar. 30, 2021 Order, ECF No. 59.) 3 On April 15, 2021, the Court received and filed Petitioner’s document 4 entitled “Ex Parte Motion to Dismiss pursuant to F.R.C.P. 41” (“April 15 Motion”). 5 (Apr. 15, 2021 Mot., ECF No. 62.) In his April 15 Motion, Petitioner stated that he 6 agrees with Respondent that the resentencing claim raised in his SAP is not 7 cognizable on federal habeas review, and moves to voluntarily dismiss this claim. 8 (Id. at 1.) However, Petitioner also “move[d] the Court to entertain the remaining 9 issue[s] that [] Petitioner had already place[d] before the Court prior to the amended 10 petition.” (Id.) Petitioner further “ask[ed] the Court to inform [] [R]espondent to 11 answer the other issues.” (Id.) 12 On May 7, 2021, the Court ordered Petitioner to file a Third Amended 13 Petition (“TAP”) raising the claims that Petitioner seeks to pursue in these 14 proceedings, explaining that Petitioner’s initial Petition and FAP had been 15 superseded by his SAP (“May 7 Order”). (May 7, 2021 Order, ECF No. 63.) See 16 C.D. Cal. L. R. 15-2 (“Every amended pleading filed as a matter of right or allowed 17 by order of the Court shall be complete including exhibits. The amended pleading 18 shall not refer to the prior, superseded pleading.”) Petitioner’s TAP initially was on 19 due on June 7, 2021. (See id. at 3.) On May 27, 2021, the Court granted 20 Petitioner’s extension request and extended the deadline for filing the TAP to July 21 23, 2021. (ECF Nos. 64 (Request), 65 (Order).) 22 On August 12, 2021, this Court issued an Order to Show Cause why the 23 proceedings should not be dismissed for failure to prosecute based on Petitioner’s 24 failure to file his TAP (“August 12 OSC”). (Aug. 12, 2021 OSC, ECF No. 66.) On 25 August 23, 2021, the Court received and filed Petitioner’s Request for a thirty-day 26 extension of time in which to file his TAP (“August 23 Request”). (Aug. 23, 2021 27 Request, ECF No. 67.) On August 25, 2021, the Court discharged the August 12 28

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1 OSC and granted Petitioner’s August 23 Request, ordering Petitioner to file his 2 TAP no later than September 24, 2021. (ECF No. 68.) 3 On October 27, 2021, the Court issued another Order to Show Cause why the 4 proceedings should not be dismissed for failure to prosecute based on Petitioner’s 5 failure to file his TAP (“October 27 OSC”). (Oct. 27, 2021 OSC, ECF No. 69.) 6 The Court warned Petitioner that “[f]ailure to comply with this order by 7 November 26, 2021 will result in a recommendation that this action be 8 dismissed for failure to prosecute and for failure to comply with court orders 9 pursuant to Federal Rule of Civil Procedure 41(b).” (Id. at 3 (emphasis in 10 original).) 11 To date, Petitioner has not responded to the October 27 OSC and has not 12 filed his TAP. 13 14 II. ANALYSIS 15 A. Legal Standard 16 Central District of California Local Rule 7-12 provides in pertinent part: 17 The Court may decline to consider any memorandum or other 18 document not filed within the deadline set by order or local rule. The 19 failure to file any required document, or the failure to file it within the 20 deadline, may be deemed consent to the granting or denial of the 21 motion . . . . 22 C.D. Cal. L.R. 7-12; see also Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) 23 (affirming dismissal on the basis of an unopposed motion pursuant to local rule). 24 In addition, district courts may dismiss cases sua sponte for failure to 25 prosecute or for failure to comply with a court order under Federal Rule of Civil 26 Procedure 41(b). Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 27 689 (9th Cir. 2005); see also Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) 28 (holding that federal district courts have “inherent power” to dismiss cases sua

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1 sponte for lack of prosecution). Unless the Court states otherwise, a dismissal under 2 Rule 41(b)—other than for lack of jurisdiction, improper venue, or failure to join a 3 party—operates as an adjudication on the merits. See Fed. R. Civ. P. 41(b). 4 Dismissal, however, “is a harsh penalty and is to be imposed only in extreme 5 circumstances.” Allen v. Bayer Corp. (In re: Phenylpropanolamine (PPA) Prods. 6 Liab. Litig.), 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal 7 Serv., 833 F.2d 128, 130 (9th Cir. 1987)). “A Rule 41(b) dismissal must be 8 supported by a showing of unreasonable delay.” Omstead v. Dell, 594 F.3d 1081, 9 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 10 1986) (quotation marks omitted)). 11 Before dismissing an action for failure to follow a local rule, failure to 12 prosecute, or failure to comply with a court order, a district court must weigh five 13 factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 14 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the 15 public policy favoring disposition of cases of their merits; and (5) the availability of 16 less drastic sanctions.” Ghazali, 46 F.3d at 53–54 (quoting Henderson v. Duncan, 17 779 F.2d 1421, 1423 (9th Cir. 1986)) (failure to follow a local rule); see also 18 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (failure to prosecute or 19 failure to comply with a court order). The Ninth Circuit will “affirm a dismissal 20 where at least four factors support dismissal, or where at least three factors strongly 21 support dismissal.” Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011) 22 (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). 23 /// 24 /// 25 /// 26 /// 27 /// 28 ///

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1 B. The Factors Support Dismissal. 2 1. The Public’s Interest in Expeditious Resolution and the Court’s 3 Need to Manage its Docket 4 The first and second factors (the public’s interest in expeditious resolution of 5 litigation and the Court’s need to manage its docket)2 weigh in favor of dismissal. 6 “Orderly and expeditious resolution of disputes is of great importance to the rule of 7 law.” Prods. Liab. Litig., 460 F.3d at 1227. Thus, “[t]he public’s interest in 8 expeditious resolution of litigation always favors dismissal.” Pagtalunan, 291 F.3d 9 at 642 (quoting Yourish, 191 F.3d at 990). In addition, district courts “have an 10 inherent power to control their dockets,” Prods. Liab. Litig., 460 F.3d at 1227 11 (quoting Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th 12 Cir. 1986)), and “are best suited to determine when delay in a particular case 13 interferes with docket management and the public interest.” Yourish, 191 F.3d at 14 990 (quoting Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)). 15 To date, Petitioner has not filed his TAP or a response to the Court’s October 16 27 OSC. Indeed, Petitioner has not communicated with the Court since August 23, 17 2021. The Court concludes that Petitioner’s failure to comply with Court orders and 18 failure to prosecute the lawsuit constitute unreasonable delay. See Thomas v. 19 Maricopa Cty. Jail, 265 Fed. App’x 606, 607 (9th Cir. 2008) (holding that district 20 court did not abuse its discretion by dismissing pro se prisoner lawsuit for failure to 21 respond to a court order for almost three months). Petitioner’s noncompliance and 22 inaction also interfere with the public’s interest in the expeditious resolution of this 23 litigation and hinder the Court’s ability to manage its docket. See Prods. Liab. 24 Litig., 460 F.3d at 1227 (“[The Ninth Circuit] defer[s] to the district court’s 25

26 2 Courts usually review the first factor in conjunction with the second factor. See 27 Prods. Liab. Litig., 460 F.3d at 1227; Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1452 (9th Cir. 1994) (The first two factors are usually reviewed together “to 28 determine if there is an unreasonable delay.”).

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1 judgment about when a delay becomes unreasonable ‘because it is in the best 2 position to determine what period of delay can be endured before its docket becomes 3 unmanageable.’” (quoting Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1451 4 (9th Cir. 1994))). For these reasons, the first and second factors favor dismissal. 5 6 2. Risk of Prejudice to Respondent 7 The third factor also supports dismissal without prejudice. The risk of 8 prejudice to a respondent is related to a petitioner’s reason for failure to prosecute an 9 action. See Pagtalunan, 291 F.3d at 642. As Petitioner has not communicated with 10 the Court since August 23, 2021, he has offered no reason for failing to file his TAP 11 or a response to the Court’s October 27 OSC. The absence of any reason indicates 12 sufficient prejudice to Respondent. See Yourish, 191 F.3d at 991–92 (holding that a 13 paltry excuse for default indicates sufficient prejudice to the defendants); see also 14 Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002) (holding that “a 15 presumption of prejudice arises from a plaintiff’s unexplained failure to prosecute”). 16 17 3. Availability of Less Drastic Alternatives 18 The fourth factor also supports dismissal without prejudice. “Warning that 19 failure to obey a court order will result in dismissal can itself meet the 20 ‘consideration of alternatives’ requirement.” Prods. Liab. Litig., 460 F.3d at 1229 21 (citing, inter alia, Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1991) 22 (“Moreover, our decisions also suggest that a district court’s warning to a party 23 that his failure to obey the court’s order will result in dismissal can satisfy the 24 ‘consideration of alternatives’ requirement.”)). In its October 27 OSC, the Court 25 warned Petitioner that the Petition would be dismissed if he did not respond to the 26 OSC or file his TAP by November 26, 2021. (Oct. 27, 2021 OSC at 3.) Despite 27 being afforded 30 days to comply, Petitioner failed to respond to the OSC. 28

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1 4. Public Policy Favoring Disposition of Cases on Their Merits 2 The fifth factor weighs against dismissal. “We have often said that the 3 public policy favoring disposition of cases on their merits strongly counsels 4 against dismissal.” Prods. Liab. Litig., 460 F.3d at 1228 (citing Hernandez, 138 5 F.3d at 399). On the other hand, “this factor ‘lends little support’ to a party whose 6 responsibility it is to move a case toward disposition on the merits but whose 7 conduct impedes progress in that direction.” Id. (citations omitted). Thus, this 8 factor alone does not preclude dismissal. 9 10 C. Dismissal of this Action is Appropriate. 11 As discussed above, Petitioner’s failure to comply with Court orders and 12 failure to prosecute this action constitute unreasonable delay. In addition, four of the 13 dismissal factors weigh in favor of dismissal, whereas only one factor weighs 14 against dismissal. “While the public policy favoring disposition of cases on their 15 merits weighs against [dismissal], that single factor is not enough to preclude 16 imposition of this sanction when the other four factors weigh in its favor.” Rio 17 Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). 18 The Court concludes that dismissal of this action for failure to comply with 19 Court orders and failure to prosecute is warranted. However, consistent with Rule 20 41(b) and this Court’s exercise of its discretion, the dismissal should be without 21 prejudice. 22 23 III. CONCLUSION 24 Accordingly, IT IS HEREBY ORDERED that (1) the Petition is DISMISSED 25 without prejudice failure to comply with a court order and failure to prosecute, 26 (2) Respondent’s Motion to Dismiss is DENIED as moot, and (3) the Clerk is 27 directed to enter judgment dismissing this action without prejudice. 28

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1 | IV. CERTIFICATE OF APPEALABILITY 2 Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the 3 || United States District Courts, the Court “must issue or deny a certificate of 4 || appealability when it enters a final order adverse to the applicant.” The Court has 5 || considered whether a certificate of appealability is warranted. See 28 U.S.C. 6 || § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The Court 7 || concludes that a certificate of appealability is not warranted; thus, a certificate of 8 || appealability is DENIED. 10 |} DATED: February 03, 2022 7 ee 11 .

13 UNITED STATES DISTRICT JUDGE 14 15 || Presented by: 16 17 | : i i$ ———

MA A. AUDERO

19 | UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28