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2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 Case No. ED CV 20-106 RSWL 13 BOBBY FONTALVO, (MRW) 14 Petitioner, ORDER DISMISSING HABEAS

ACTION WITHOUT PREJUDICE

15 v. 16 STU SHERMAN, WARDEN, 17 Respondent. 18 19 The Court dismisses this habeas action without prejudice for failure 20 to prosecute and for lack of federal jurisdiction. 21 * * * 22 1. This is a habeas action involving a state prisoner. In 2013, 23 Petitioner pled guilty to attempted murder.1 The trial court sentenced 24 Petitioner to term of 15 years in prison. 25 2. At some later time, Petitioner challenged his sentence in state 26 court based on the enactment of new state law. Although not entirely clear

27 1 In his petition, Petitioner claimed that he was convicted in 1982. A closer review of the attachments to his pro se petition reveals that this was the 28 year of his birth, not of his conviction. (Docket # 1 at 32.) 1 from the face of the petition, Petitioner apparently did not seek review of 2 the matter in the state supreme court. (Docket # 1 at 5-6.) Instead, he 3 filed this habeas action in federal court. 4 3. Magistrate Judge Wilner screened the petition pursuant to 5 local practice and Habeas Rule 4. Judge Wilner preliminarily concluded 6 that the habeas petition (a) contained unexhausted claims and (b) did not 7 clearly present cognizable claims for federal habeas relief. (Docket # 4.) 8 Judge Wilner ordered Petitioner to respond with information regarding 9 how he intended to proceed with the unexhausted claims. The order also 10 required Petitioner to submit a supplemental statement explaining the 11 nature of the federal constitutional claims in the petition. Judge Wilner 12 ordered Petitioner to respond to the motion or take other appropriate 13 action by mid-February 2020. 14 4. Petitioner did not respond to the Court’s screening order. 15 Judge Wilner then issued an order to show cause why the action should not 16 be dismissed. (Docket # 6.) The order warned Petitioner that failure to 17 respond would “result in a recommendation that the action will be 18 dismissed pursuant to Federal Rule of Civil Procedure 41(b)” for failure to 19 prosecute the action. Petitioner did not respond to the Court’s OSC, either. 20 * * * 21 5. Rule 41(b) provides that if a plaintiff “fails to prosecute or to 22 comply with these rules or a court order, a defendant may move to dismiss 23 the action or any claim against it.” Dismissal also may be ordered by the 24 Court sua sponte. Dietz v. Bouldin, ___ U.S. ___, 136 S. Ct. 1885, 1892 25 (2016). 26 6. Dismissal of a civil action under Rule 41 may be appropriate to 27 advance the public’s interest in the expeditious resolution of litigation, the 28 1 court’s need to manage its docket, and to avoid the risk of prejudice to 2 defendants. Additionally, a court must consider the public policy favoring 3 disposition of cases on their merits and the availability of less drastic 4 alternatives in its evaluation. Applied Underwriters, Inc. v. Lichtenegger, 5 913 F.3d 884, 890 (9th Cir. 2019); Dreith v. Nu Image, Inc., 648 F.3d 779, 6 788 (9th Cir. 2011). 7 7. In the present action, dismissal is appropriate. Petitioner did 8 not respond to the Attorney General’s original dismissal motion or two 9 orders regarding this action. The magistrate judge expressly advised 10 Petitioner that he risked dismissal of his case if he did not act. Petitioner’s 11 failure to respond to the Court’s orders demonstrates that he has no 12 interest in advancing the action here. 13 8. By contrast, the Court, the state, and the public have a strong 14 interest in terminating this action. This is particularly true given that 15 Petitioner effectively abandoned his case by not responding to the Court’s 16 orders or the Attorney General’s dismissal motion in the action. 17 Furthermore, because Petitioner is a pro se litigant who did not abide by 18 the Court’s recent order, no sanction short of dismissal will be effective in 19 moving this case forward. Applied Underwriters, 913 F.3d at 890. 20 9. Further, this Court is without jurisdiction to consider habeas 21 corpus relief for Petitioner. From the face of the petition, it is apparent 22 that Petitioner has not pled a federal constitutional claim that has been 23 properly presented and exhausted in the state court system. 28 U.S.C. 24 § 2254. On that basis, the Court does not have jurisdiction over the matter.

25 26 27 28 1 10. Dismissal is appropriate under Rule 41(b). Accordingly, this 2 | action is DISMISSED without prejudice. 3 IT IS SO ORDERED. 4 5 6 Dated: 4/28/2020 s/ RONALD S.W. LEW

HON. RONALD 8.W. LEW

7 SENIOR U.S. DISTRICT JUDGE 8 Presented by: 9 Lit] 11

HON. MICHAEL R. WILNER

12 | UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28