1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JIMMY L. NEWMAN, III, Case No. 1:20-cv-01251-HBK 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO

DISMISS PETITION FOR FAILURE TO

13 v. PROSECUTE, FAILURE TO STATE A

COGNIZABLE CLAIM AND FAILURE TO

14 KING’S COUNTY CLERK’S OFFICE, et EXHAUST HIS CLAIM1 al., 15 OBJECTIONS DUE IN THIRTY DAYS Respondents. 16 (Doc. No. 1)

17 ORDER DIRECTING CLERK OF COURT TO

ASSIGN CASE TO DISTRICT JUDGE

18 19 Petitioner Jimmy L. Newman, III, a state prisoner, has pending a pro se petition for writ of 20 habeas corpus under 28 U.S.C. § 2254.2 (Doc. No. 1). The petition is before the court for 21 preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, the 22 judge assigned to the habeas proceeding must examine the habeas petition and order a response to 23 the petition unless it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. 24 Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th 25 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 26 (E.D. Cal. 2019). 2 Petitioner previously sought habeas relief in this court. See Newman v. CDCR, 1:20-cv-01118-NONE- 27 HBK (E.D. Cal. Dec. 9, 2020). Because the petition raises a different claim against a different respondent, the court does not deem the instant petition duplicative or successive of petitioner’s earlier petition, which 28 was dismissed for petitioner’s failure to exhaust his claims. (Id. at Doc. Nos. 7, 8). 1 Cir. 1998). Courts have “an active role in summarily disposing of facially defective habeas 2 petitions” under Rule 4. Ross v. Williams, 896 F.3d 958, 968 (9th Cir. 2018) (citation omitted). 3 I. BACKGROUND 4 Petitioner initiated this case on September 3, 2020 by filing the instant petition. (Doc. No. 5 1). Petitioner is currently serving a four-year term of imprisonment for assault with a deadly 6 weapon entered by the King County Superior Court. (Id. at 2). The petition advances one claim 7 for relief: The King County Superior Court clerk’s office is discriminating against petitioner by 8 failing to forward his case files to the California Department of Corrections and Rehabilitation 9 (“CDCR”) “for processing and evaluation.” (Id. at 3). On November 30, 2020 and April 19, 10 2021, orders sent by the court to petitioner were returned marked “Undeliverable, Inmate Not 11 Here.” (See docket). 12 II. APPLICABLE LAW AND ANALYSIS 13 a. Petitioner Has Failed to Prosecute This Action 14 This court’s Local Rules require litigants to keep the court appraised of their current 15 address, specifically providing: “[a] party appearing in propria persona shall keep the Court and 16 opposing parties advised as to his or her current address. If mail 17 directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court 18 and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice 19 for failure to prosecute.” 20 Local Rule 183(b) (E.D. Cal. 2019). Federal Rule of Civil Procedure 41(b) permits the 21 court to involuntarily dismiss an action when a litigant fails to prosecute an action or fails to 22 comply with other rules or with a court order. See Fed. R. Civ. P. 41(b); see Applied 23 Underwriters v. Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) (citations omitted). Local Rule 24 110 similarly permits the court to impose sanctions on a party who fails to comply with the 25 court’s rules or any order of the court. 26 Before dismissing an action under Rule 41(b), the court must consider: (1) the public 27 interest in expeditious resolution of litigation; (2) the court’s need to manage a docket; (3) the risk 28 1 of prejudice to defendant; (4) public policy favoring disposition on the merits; and (5) the 2 availability of less drastic sanctions. See Applied Underwriters, 913 F.3d at 889 (noting that 3 these five factors “must” be analyzed before a Rule 41 involuntarily dismissal) (emphasis added); 4 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing five factors and 5 independently reviewing the record because district court did not make finding as to each); but 6 see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing the same, but 7 noting the court need not make explicit findings as to each) (emphasis added); Ferdik v. Bonzelet, 8 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 1983 action when plaintiff 9 did not amend caption to remove “et al” as the court directed and reiterating that an explicit 10 finding of each factor is not required by the district court). 11 The undersigned considers the above-stated factors and concludes the majority of the 12 above factors favor dismissal in this case. The expeditious resolution of litigation is deemed to be 13 in the public interest. Yourish v. California Amplifier, 191 F.2d 983, 990-91 (9th Cir. 1999). 14 Turning to the second factor, the court’s need to efficiently manage its docket cannot be 15 overstated. This court has “one of the heaviest caseloads in the nation,” and due to unfilled 16 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 17 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 18 Emergency in the Eastern District of California. The court’s time is better spent on its other 19 matters than needlessly consumed managing a case with a recalcitrant litigant. Indeed, “trial 20 courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and 21 requirements of our courts.” Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., 22 concurring in affirmance of district court’s involuntary dismissal with prejudice of habeas petition 23 where petitioner failed to timely respond to court order and noting “the weight of the docket- 24 managing factor depends upon the size and load of the docket, and those in the best position to 25 know what that is are our beleaguered trial judges.”). Delays inevitably have the inherent risk 26 that evidence will become stale or witnesses’ memories will fade or be unavailable and can 27 prejudice a respondent. See Sibron v. New York, 392 U.S. 40, 57 (1968). Finally, less drastic 28 remedies in lieu of dismissal, such as, directing petitioner to submit an updated address, or an 1 order to show cause why the case should not be dismissed for failure to comply with Local Rules 2 would be an act of futility because the order would be returned without delivery. Additionally, 3 the instant dismissal is a dismissal without prejudice, which is a lesser sanction than a dismissal 4 with prejudice. 5 Here, two orders from the court addressed to petitioner were returned as undeliverable. 6 (See docket entries dated November 30, 2020 and April 19, 2021). Contrary to Local Rule 7 183(b), more than 63 days have passed since the first order was returned as undeliverable and 8 petitioner has not updated his mailing address or otherwise contacted the court. After considering 9 the factors set forth supra and binding case law, the undersigned recommends dismissal, without 10 prejudice, under Fed. R. Civ. P. 41 and Local Rules 110 and 183(b). 11 b. The Petition Does Not State a Cognizable Claim 12 A federal court “shall entertain an application for a writ of habeas corpus in behalf of a 13 person in custody pursuant to the judgment of a State court only on the ground that he is in 14 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 15 2254(a). To pass initial screening under Rule 4, petitioner must allege a violation of “clearly 16 established federal law”—meaning a violation of a U.S. Supreme Court holding. See White v. 17 Woodall, 572 U.S. 415, 419 (2014). Habeas relief is not available where a favorable judgement 18 would not “necessarily lead to [a petitioner’s] immediate or earlier release from confinement.” 19 See Nettles v. Grounds, 830 F.3d 922, 935 (9th Cir. 2016). 20 The sole claim raised in the petition is that state court clerks are discriminating against 21 him in their handling of his legal filings. (See Doc. No. 1 at 3). This claim does not allege that 22 petitioner is in custody due to a violation of clearly established federal law. Petitioner cannot 23 show how a favorable judgment would necessarily lead to his immediate or earlier release from 24 custody.3 Such a claim of discrimination at the hands of county officials is best directed to the 25

26 3 Petitioner also fails to name the proper respondent. “[I]n habeas challenges to present physical confinement— ‘core challenges’—the default rule is that the proper respondent is the warden of the 27 facility where the prisoner is being held.” Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004); 28 U.S.C. § 2242. Petitioner identifies the Kings County Superior Court and its clerks as respondents. 28 Neither Kings County Superior Court nor its clerks have custody of petitioner. 1 county court in which the alleged discrimination has taken place. To the extent that petitioner is 2 attempting to articulate a Fourteenth Amendment due process claim, his claim is better suited to a 3 civil rights complaint filed pursuant to 42 U.S.C. § 1983, not a claim for habeas relief. Thus, the 4 undersigned recommends dismissal because the petition fails to articulate a cognizable claim. 5 c. Petitioner Has Failed to Exhaust Claim 6 A petitioner in state custody who wishes to proceed on a federal petition for a writ of 7 habeas corpus must exhaust state judicial remedies. See 28 U.S.C. § 2254(b)(1). Exhaustion is a 8 “threshold” matter that must be satisfied before the court can consider the merits of each claim. 9 Day v. McDonough, 547 U.S. 198, 205 (2006). The exhaustion doctrine is based on comity and 10 permits the state court the initial opportunity to resolve any alleged constitutional deprivations. 11 See Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). 12 To satisfy the exhaustion requirement, petitioner must provide the highest state court with a full 13 and fair opportunity to consider each claim before presenting it to the federal court. See 14 O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 365 (1995). 15 The burden of proving exhaustion rests with the petitioner. Darr v. Burford, 339 U.S. 200, 218 16 (1950) (overruled in part on other grounds by Fay v. Noia, 372 U.S. 391 (1963)). A failure to 17 exhaust may only be excused where the petitioner shows that “there is an absence of available 18 State corrective process” or “circumstances exist that render such process ineffective to protect 19 the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B)(i)-(ii). 20 Here, petitioner presents no evidence that he has sought review of his claims before the 21 state appellate and supreme courts.4 Indeed in his petition petitioner denies that he sought relief 22 on appeal or in the California Supreme Court. (Doc. No. 1 at 6). Accordingly, even if the claim 23 stated a cognizable claim for relief, which it does not, petitioner has failed to exhaust his claim. If 24 petitioner has presented his claim to the appropriate state courts, he should provide proof of these 25 filings to the court in his objections to these findings and recommendations. 26 4 The court reviewed the California Courts Appellate Courts Case Information online database and takes 27 judicial notice of it per Rule 201 of the Federal Rules of Evidence. See California Courts Appellate Courts Case Information, https://appellatecases.courtinfo.ca.gov/search.cfm?dist=0 (search “Search by Party” for 28 “Jimmy Newman”). The online database lists no appellate cases for petitioner. 1 III. CERTIFICATE OF APPEALABILITY 2 State prisoners in a habeas corpus action under § 2254 do not have an automatic right to 3 appeal a final order. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 4 (2003). To appeal, a prisoner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2); 5 see also R. Governing Section 2254 Cases 11 (requires a district court to issue or deny a 6 certificate of appealability when entering a final order adverse to a petitioner); Ninth Circuit Rule 7 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court 8 denies habeas relief on procedural grounds without reaching the merits of the underlying 9 constitutional claims, the court should issue a certificate of appealability only “if jurists of reason 10 would find it debatable whether the petition states a valid claim of the denial of a constitutional 11 right and that jurists of reason would find it debatable whether the district court was correct in its 12 procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar 13 is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 14 could not conclude either that the district court erred in dismissing the petition or that the 15 petitioner should be allowed to proceed further.” Id. Here, reasonable jurists would not find the 16 undersigned’s conclusion debatable or conclude that petitioner should proceed further. The 17 undersigned therefore recommends that a certificate of appealability not issue. 18 Accordingly, it is ORDERED: 19 The clerk of court is directed to assign this case to a district judge. 20 Further, it is RECOMMENDED: 21 1. The petition (Doc. No. 1) be DISMISSED. 22 2. Petitioner be denied a certificate of appealability. 23 NOTICE TO PARTIES 24 These findings and recommendations will be submitted to the United States district judge 25 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 26 days after being served with these findings and recommendations, a party may file written 27 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 28 Findings and Recommendations.” Parties are advised that failure to file objections within the 1 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 2 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 | ITISSO ORDERED. 5 , | Dated: _April 29, 2021 Whe Wh. foareh Zackie

HELENA M. BARCH-KUCHTA

7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28