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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 FREDDY ZAVALA ODANGA, Case No. 5:20-00187 DSF (ADS)

11 Petitioner,

12 v. ORDER SUMMARILY DISMISSING

PETITION FOR WRIT OF HABEAS

13 SAN BERNARDINO COUNTY, CORPUS

14 Respondent.

15 16 I. INTRODUCTION 17 Pending before the Court is a Petition for Writ of Habeas Corpus by a Person in 18 State Custody (“Petition”) filed by petitioner Freddy Zavala Odanga (“Petitioner”). [Dkt. 19 No. 1]. On March 31, 2020, the Court issued an Order to Show Cause why the Petition 20 should not be dismissed because the Petition reflected Petitioner did not fully exhaust 21 his state remedies. [Dkt. No. 3]. Petitioner did not file a response. On May 8, 2020, the 22 Court issued an Order to Show Cause Re: Dismissal for failure to prosecute the Petition 23 and follow court orders. [Dkt. No. 4]. Again, Petitioner did not file a response. 24 1 II. FAILURE TO PROSECUTE AND COMPLY WITH COURT ORDERS 2 Petitioner has failed to prosecute this habeas petition and comply with court 3 orders. As an initial matter, the Petition was filed without paying the filing fee. [Dkt. 4 No. 1]. This failure was never remedied. On March 31, 2020, the Court issued an Order 5 to Show Cause related to the fact that the Petition reflected Petitioner had not fully

6 exhausted his state remedies. [Dkt. No. 3]. The Court ordered Petitioner to file a 7 response selecting one of the following options: (1) voluntarily dismissing the Petition 8 and filing a state habeas petition with the state court; (2) filing a motion to stay this case 9 under Rhines v. Weber, 544 U.S. 269, 277-78 (2005); or (3) proceed with the Petition in 10 its current form, despite the infirmities described in the Order. [Id., pp. 3–4]. The 11 Order expressly cautioned Petitioner that failure to respond would result in a 12 recommendation that the action be dismissed pursuant to Federal Rule of Civil 13 Procedure 41(b). [Id., p. 5]. Petitioner did not respond to the Order. 14 On May 8, 2020, the Court issued an Order to Show Cause Re: Dismissal 15 requiring Petitioner to respond in writing why the action should not be dismissed for 16 failure to prosecute the Petition and follow court orders. [Dkt. No. 4]. The Order

17 expressly cautioned Petitioner that failure to respond would result in a recommendation 18 that the action be dismissed under Federal Rule of Civil Procedure 41(b). [Id., p. 2]. 19 Petitioner did not respond to the Order. 20 Petitioner’s repeated failure to respond despite Court orders to do so reflects a 21 lack of prosecution of the case and failure to comply with Court orders. In Carey v. 22 King, 856 F.2d 1439 (9th Cir. 1988), the Ninth Circuit cited the following factors as 23 relevant to the Court’s determination of whether to dismiss an action for failure to 24 prosecute: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 1 need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 2 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 3 sanctions.” Id. at 1440. 4 Upon consideration of the five Carey factors, the Court finds that Petitioner's 5 failure to prosecute his case and failure to comply with the Court’s Orders warrant

6 dismissal. The first two Carey factors—the public's interest in expeditiously resolving 7 this litigation and the Court's interest in managing the docket—weigh in favor of 8 dismissal. The Court cannot hold this case in abeyance indefinitely awaiting Petitioner's 9 response to the Court's directive. The third factor, risk of prejudice to Respondent, also 10 weighs in favor of dismissal since a presumption of injury arises from the occurrence of 11 unreasonable delay in prosecuting an action. Anderson v. Air West, Inc., 542 F.2d 522, 12 524 (9th Cir. 1976). The fourth factor, the public policy favoring disposition of cases on 13 their merits, is greatly outweighed by the factors in favor of dismissal. 14 Finally, Petitioner has already been warned about the consequences of his failure 15 to prosecute and twice ordered to show cause why the action should not be dismissed. 16 Petitioner has been afforded the opportunity to do so yet has not responded. Moreover,

17 the Petition is also subject to dismissal because it remains wholly unexhausted. No 18 sanction less than dismissal is feasible here. Dismissal of this action is warranted under 19 Federal Rule of Civil Procedure 41(b) and Local Rule 7-12. 20 III. CONCLUSION 21 IT IS ORDERED that this action be summarily dismissed with 22 / / / 23 / / / 24 1 || prejudice pursuant to Federal Rule of Civil Procedure 41(b) and Central District of 2 || California Local Rule 7-12. 5 IT IS SO ORDERED. 4 || DATED: May 29, 2020 / ) 5 Honorable Dale SFscher 6 UNITED STATES DISTRICT JUDGE

7 || Presented by: 8 ||____—/s/ Autumn D. Spaeth

THE HONORABLE AUTUMN D. SPAETH

9 || United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24