1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TREVON LEE FOREMAN, Case No. 1:22-cv-00589-HBK (HC) 12 Petitioner, ORDER TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO

DISMISS PETITION1

14 STATE OF CALIFORNIA, (Doc. No. 1) 15 Respondent.

FOURTEEN-DAY OBJECTION PERIOD

16

17 18 Petitioner Trevon Lee Foreman proceeding pro se initiated this action by filing a petition 19 for writ of habeas corpus under 28 U.S.C. § 2254 on May 13, 2022 in the Sacramento Division of 20 the Court. (Doc. No. 1). The Petition raises three grounds: ineffective assistance of counsel; 21 violation of Petitioner’s right to an impartial jury under the Sixth Amendment; and violation of 22 Petitioner’s due process and equal protection rights. (See generally Doc. No. 1). After transfer to 23 this Court on May 18, 2022, the Court issued new case documents, an order directing Petitioner 24 to complete and return the form indicating consent or decline to the jurisdiction of the Magistrate 25 Judge, and an order authorizing in forma pauperis status. (Doc. Nos. 4-6). On May 27, 2022, 26

27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022). 28 1 and again on June 9, 2022, the orders served on Petitioner were returned by the U.S. Postal 2 Service as “undeliverable – not in custody.” (See docket). As of the date of this Findings and 3 Recommendation, Petitioner has not filed a notice of change of address, nor has he contacted the 4 Court. 5 As an initial matter, the Court notes that were it to conduct a preliminary review under 6 Rule 4, the Petition fails to include basic information including his current place of confinement, 7 the date of the judgment of conviction, the length of his sentence, and the nature of the offense 8 involved. (See Doc. No. 1 at 1). In addition, Petitioner admits he has not exhausted any of the 9 grounds raised in his Petition because “all the grounds for a[n] appeal are federal grounds. 10 Therefore there are no legal need to file a state court appeal.” (Id. at 2). See 28 U.S.C. § 11 2254(b)(1) (a petitioner in state custody who wishes to proceed on a federal petition for a writ of 12 habeas corpus must exhaust state judicial remedies). And finally, as of the date of these Findings 13 and Recommendations, from the Court’s review of the California docket, Petitioner’s direct 14 appeal remains pending in the Fifth Appellate District Court. 2 See Younger v. Harris, 401 U.S. 15 37, 44 (1971) (a federal court generally cannot interfere with pending state criminal proceedings); 16 see also Page v. King, 932 F.3d 898, 901–902 (9th Cir. 2019) (in the habeas context, “[w]here . . . 17 no final judgment has been entered in state court, the state court proceeding is plainly ongoing for 18 the purposes of Younger.”) 19 That said, as set forth herein, the undersigned nonetheless recommends that the Petition be 20 dismissed for failure to prosecute. 21 I. APPPLICABLE LAW 22 This court’s Local Rules require litigants to keep the court appraised of their current 23 address, specifically providing:

24 “[a] party appearing in propria persona shall keep the Court and 25 opposing parties advised as to his or her current address. If mail directed to a plaintiff in propria persona by the Clerk is returned by 26 2 The Court takes judicial notice of the California Courts Appellate Courts Case Information online 27 database pursuant to Rule 201 of the Federal Rules of Evidence, which lists no appellate or supreme court habeas cases for Petitioner. See https://appellatecases.courtinfo.ca.gov/search.cfm?dist=0 (search “Search 28 by Party” for “Trevon Lee Foreman”). 1 the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties within sixty-three (63) days thereafter of a 2 current address, the Court may dismiss the action without prejudice for failure to prosecute.” 3 4 Local Rule 183(b) (E.D. Cal. 2022). Federal Rule of Civil Procedure 41(b) permits the court to 5 involuntarily dismiss an action when a litigant fails to prosecute an action or fails to comply with 6 other Rules or with a court order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. 7 Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) (citations omitted). Local Rule 110 similarly 8 permits the court to impose sanctions on a party who fails to comply with the court’s Rules or any 9 order of the court. 10 Before dismissing an action under Fed. R. Civ. P. 41, the court must consider: (1) the 11 public interest in expeditious resolution of litigation; (2) the court’s need to manage a docket; (3) 12 the risk of prejudice to defendant; (4) public policy favoring disposition on the merits; and (5) the 13 availability of less drastic sanctions. See Applied Underwriters, 913 F.3d at 889 (noting that 14 these five factors “must” be analyzed before a Rule 41 involuntarily dismissal) (emphasis added); 15 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing five factors and 16 independently reviewing the record because district court did not make finding as to each); but 17 see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing the same, but 18 noting the court need not make explicit findings as to each) (emphasis added); Ferdik v. Bonzelet, 19 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 1983 action when plaintiff 20 did not amend caption to remove “et al” as the court directed and reiterating that an explicit 21 finding of each factor is not required by the district court). 22 II. ANALYSIS 23 The undersigned considers the above-stated factors and concludes the majority of the 24 above factors favor dismissal in this case. The expeditious resolution of litigation is deemed to be 25 in the public interest. Yourish v. California Amplifier, 191 F.2d 983, 990-91 (9th Cir. 1999). 26 Turning to the second factor, the court’s need to efficiently manage its docket cannot be 27 overstated. This court has “one of the heaviest caseloads in the nation,” and due to unfilled 28 1 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 2 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 3 Emergency in the Eastern District of California. The court’s time is better spent on its other 4 matters than needlessly consumed managing a case with a recalcitrant litigant. Indeed, “trial 5 courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and 6 requirements of our courts.” Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., 7 concurring in affirmance of district court’s involuntary dismissal with prejudice of habeas petition 8 where petitioner failed to timely respond to court order and noting “the weight of the docket- 9 managing factor depends upon the size and load of the docket, and those in the best position to 10 know what that is are our beleaguered trial judges.”). Delays inevitably have the inherent risk 11 that evidence will become stale or witnesses’ memories will fade or be unavailable and can 12 prejudice a respondent. See Sibron v. New York, 392 U.S. 40, 57 (1968). Finally, less drastic 13 remedies in lieu of dismissal, such as, directing petitioner to submit an updated address, or issuing 14 an order to show cause why the case should not be dismissed for failure to comply with Local 15 Rules, for failing to exhaust his grounds at the state court level, and/or dismissal under Younger 16 would be an act of futility because any such order would be returned without delivery. 17 Additionally, the instant dismissal is a dismissal without prejudice, which is a lesser sanction than 18 a dismissal with prejudice. 19 Contrary to Local Rule 183(b), more than 63 days have passed since mail was returned as 20 undeliverable and petitioner has not updated his mailing address or otherwise contacted the court. 21 After considering the factors set forth supra and binding case law, the undersigned recommends 22 dismissal, without prejudice, under Fed. R. Civ. P. 41 and Local Rules 110 and 183(b). 23 Accordingly, it is ORDERED: 24 The Clerk of Court is directed to assign a district judge to this case. 25 It is further RECOMMENDED: 26 1. This case be dismissed without prejudice for failure to prosecute. 27 2. The Clerk of Court be directed to terminate any pending motions/deadlines and 28 close this case. 1 NOTICE TO PARTIES 2 These findings and recommendations will be submitted to the United States district judge 3 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 4 | days after being served with these findings and recommendations, a party may file written 5 || objections with the court. The document should be captioned “Objections to Magistrate Judge’s 6 | Findings and Recommendations.” Parties are advised that failure to file objections within the 7 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 8 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 | Dated: _ August 2, 2022 Mihaw. □□□ foareh Yack 11 HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE

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