Opinion
Case No. 2:19-cv-00625-GW-KES
12-02-2019
BRYAN K. ESCOBAR, Petitioner, v. CALIFORNIA CORRECTIONS DEPT., Respondent.
ORDER DISMISSING PETITION WITHOUT PREJUDICE
I.
INTRODUCTION
On January 14, 2019, Petitioner Bryan K. Escobar ("Petitioner") constructively filed Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (the "Petition"). (Dkt. 1.) Petitioner is a California state prisoner presently incarcerated at the RJ Donovan Correctional Facility after pleading nolo contendere to "possession of a firearm." (Id. at 2.)
Petitioner raises five grounds for habeas relief: (1) his conviction violates the Second Amendment, because he has a right to "possess a firearm for household safety"; (2) his conviction violates the First Amendment, because he has "a right to protest against non-religious belief based on [his] religion ..."; (3) his conviction constitutes cruel and unusual punishment, because he is at risk of assault while in custody; (4) the search that led to discovery of the firearm violated the Fourth Amendment; and (5) he is eligible for early release under Proposition 57. (Id. at 5-6.) Petitioner included with the Petition Form CR-187, which requests resentencing in the California state courts. (Id. at 11-12.)
California's Proposition 57, approved by voters in November 2016, makes parole more available for certain felons convicted of nonviolent crimes. Travers v. California, 2018 U.S. Dist. LEXIS 18715, at *3-4 (N.D. Cal. Feb. 5, 2018). Because success on a Proposition 57 claim (i.e., obtaining consideration for parole) will not necessarily lead to immediate or speedier release, such claims must be alleged as civil rights claims, not habeas claims. Id. at *7-8.
II.
PROCEDURAL HISTORY
On August 10, 2017, Petitioner was convicted and sentenced in Los Angeles County. (Id. at 2.) Petitioner does not allege that he pursued any direct appeal or filed any collateral challenges prior to filing the instant Petition. (Id. at 3-4.) A search of the online California Appellate Courts Case Information System has also revealed no such filings. See https://appellatecases.courtinfo.ca.gov/. Petitioner constructively filed the Petition on January 14, 2019. (Dkt. 1.)
On February 5, 2019, the Court screened the Petition pursuant to Rule 4 of the Rules Governing § 2254 Petitions and determined: (1) the Petition appears untimely because, absent tolling, Petitioner had until October 9, 2018 to file the Petition, and (2) the Petition appears unexhausted because Petitioner does not claim to have exhausted any of his ground for relief by fairly presenting them to the California Supreme Court (see id. at 2-8). (Dkt. 4.) The Court ordered Petitioner to show cause why the Petition should not be dismissed, by doing the following on or before March 4, 2019: (1) show that the Petition is timely, and (2) show that the Petition is exhausted or move for a stay under Rhines v. Weber, 544 U.S. 269 (2005). (Id. at 6.) The Court noted, however, that Petitioner might encounter difficulty meeting the Rhines standard because his habeas claims appeared to lack merit. (Id. at 5.) Several of his grounds for relief appeared to be civil rights claims rather than habeas claims; the Court noted that Petitioner could opt to file a notice of voluntary dismissal and then file a civil rights lawsuit in the Southern District of California (i.e., the jurisdiction where he is presently in custody). (Id. at 5-6.)
On February 6, 2019, the Court denied Petitioner's request to proceed in forma pauperis ("IFP") because Petitioner did not submit a certified copy of his inmate trust account statement as required by Rule 3(a) of the Rules Governing § 2254 Petitions. (Dkt. 5.) The Court ordered Petitioner to either submit a completed IFP application or pay the $5.00 filing fee within thirty days. (Id.)
On February 26, 2019, the Court received Petitioner's renewed application to proceed IFP, which included: (1) an inmate trust account statement (not certified), (2) a Rules Violation Report, (3) a drawing, (4) a "chrono" for removal from his academic program because Petitioner possesses a high school diploma, (5) an appeal disposition indicating that Petitioner is "identified with a disability/communication issue" and requires several "Adaptive Supports" in prison, (6) a "Notice of Classification Hearing" recognizing Petitioner's disability and showing that Petitioner was previously incarcerated at California Health Care Facility in Stockton, California ("CHCF"), and (7) a handwritten letter from 2018 describing Petitioner's family life and struggles with homelessness. (Dkt. 6.) The Court denied the renewed IFP application because it did not include an affidavit with a statement of assets or a certified inmate trust account statement for the six months preceding the filing of the Petition. (Dkt. 7.) The Court provided Petitioner an additional thirty days to file a completed application or pay the filing fee. (Id.)
Per the CHCF website, "CHCF provides medical care and mental health treatment to inmates who have the most severe and long term needs. The ... facility is certified to provide intermediate level care and to complement less acute treatment provided in other prisons operated by the CDCR." See https://www.cdcr.ca.gov/Facilities_Locator/CHCF.html.
After Petitioner failed to timely discharge the order to show cause, on March 18, 2019 the Court sua sponte granted Petitioner an additional thirty days to discharge the order. The Court required him to file a notice stating that he intends to do one of the following: (1) pursue federal habeas relief in this Court, despite the Petition's defects identified on screening, or (2) file a civil rights action in the Southern District of California. (Dkt. 8.)
On March 18, 2019, the Court received a renewed IFP application, which also did not include the certificate of an authorized officer or Petitioner's trust account statement for the six months preceding the filing of the Petition. (Dkt. 9.) The Court denied the request, explaining that Petitioner's trust account statement was not certified and encompassed only the three months preceding the filing of the Petition. (Dkt. 10.) The Court granted Petitioner thirty days to file a renewed request to proceed IFP. (Id.)
On April 11, 2019, the Court received a notice from Petitioner indicating that he intends to pursue federal habeas and Proposition 57 relief in this Court (Dkt. 11), although the Court had previously explained that Proposition 57 relief is not a federal habeas claim. Petitioner included with his filing the first page of an order from an Eastern District of California case (1:19-cv-00321), in which Petitioner was granted permission to proceed IFP.
This is a prisoner civil rights action filed under 42 U.S.C. § 1983, in which Petitioner alleges that he suffered various constitutional violations while incarcerated. (1:19-cv-00321, Dkt. 1.) In that case, Petitioner filed the required affidavit (id., Dkt. 2) and a certified copy of the trust account statement. (Id., Dkt. 4.) Petitioner has not filed a certified copy of his trust account statement here.
On April 16, 2019, understanding that Petitioner intended to pursue federal habeas relief in this Court, the Court reinstated the initial order to show cause (Dkt. 4) and ordered Petitioner to do the following on or before May 16, 2019: (1) show that the Petition is timely, (2) show that his grounds for relief are exhausted or move for a Rhines stay, and (3) if he agrees that his Eighth Amendment and Proposition 57 grounds for relief are civil rights claims (rather than federal habeas claims), then file a notice of voluntary dismissal of those claims. (Dkt. 12.) The Court also sent Petitioner Form CV-60 (Declaration in Support of Request to Proceed IFP) and ordered Petitioner to file a renewed IFP request on or before May 16, 2019, completing the affidavit and submitting a copy of his inmate trust account statement, certified by an authorized prison officer, for the six months preceding the filing of the Petition; alternatively, Petitioner could pay the $5.00 filing fee. (Id. at 3.) Petitioner did not respond.
III.
DISCUSSION
The Court dismisses this habeas action without prejudice on three grounds: (A) failure to prosecute, (B) failure to show entitlement to relief, and (C) failure to file a proper IFP application. A. Failure to Prosecute.
It is well-established that a district court may dismiss an action for failure to prosecute, failure to follow court orders, or failure to comply with the federal or local rules. See Fed. R. Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-30 (1962); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). Local Rule 41-1 provides that "[c]ivil suits which have been pending for an unreasonable period of time without any action having been taken therein may, after notice, be dismissed for want of prosecution."
In determining whether to dismiss a case for failure to prosecute or failure to comply with court orders, a district court should consider the following five factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to Respondent; (4) the availability of less drastic sanctions; and (5) the public policy favoring disposition of cases on their merits. See In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226-28, 1234-52 (9th Cir. 2006); Gibbs v. Hedgpeth, 389 F. App'x 671, 673 (9th Cir. 2010) (applying five factors in habeas proceeding). The test is not "mechanical," but provides a "non-exhaustive list of things" to "think about." Valley Eng'rs v. Elec. Eng'g Co., 158 F.3d 1051, 1057 (9th Cir. 1998).
Here, the five factors support dismissal of Petitioner's habeas action based on his failure to prosecute this case; he has failed to comply with the Court's orders to submit a proper IFP application and to show cause why the Petition should not be dismissed as untimely and unexhausted. The first factor—the public's interest in the expeditious resolution of litigation—"always favors dismissal." Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999).
The second factor—the Court's need to manage its docket—also supports dismissal. Petitioner's "noncompliance has caused [this] action to come to a complete halt, thereby allowing [him] to control the pace of the docket rather than the Court." Id. (internal quotations marks omitted). Petitioner's inaction frustrates the public's interest in the expeditious resolution of litigation and the Court's need to manage its docket.
The third factor—prejudice to Respondent—supports dismissal. This action has been pending for over four months. During that time, Petitioner has repeatedly failed to submit proper IFP applications; twice, he failed to discharge the Court's order to show cause why the Petition should not be dismissed as untimely and unexhausted. "[T]he failure to prosecute diligently is sufficient by itself to justify a dismissal, even in the absence of a showing of actual prejudice to the defendant from the failure ... The law presumes injury from unreasonable delay." Southwest Marine, Inc. v. Danzig, 217 F.3d 1128, 1138 (9th Cir. 2000) (citing Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1451 (9th Cir. 1994)).
The fourth factor—availability of less drastic sanctions—favors dismissal. As explained above, the Court gave Petitioner multiple opportunities to prosecute his claims. The Court has repeatedly instructed Petitioner on how to file a proper IFP application and has given Petitioner a handful of opportunities to do so. (Dkts. 5, 7, 10, 12.) As shown by printout Petitioner included from his civil rights suit, he has been able to successfully apply to proceed IFP in other actions. (Dkt. 11.) The Court has also given Petitioner several opportunities to show that he is entitled to federal habeas relief (Dkts. 4, 8, 12); twice, Petitioner failed to discharge the Court's order to show cause. Under these circumstances, the Court is unable to impose a lesser effective sanction.
Petitioner also filed another habeas petition in the Eastern District of California, which was transferred to the Southern District and subsequently dismissed without prejudice for failure to (1) pay the filing fee or submit an IFP application, (2) name the proper respondent, and (3) allege exhaustion of state court remedies. (See 3:19-cv-00912.)
The fifth factor—public policy favoring a disposition of an action on its merits—weighs against dismissal. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). The impact of that factor is mitigated here, however, because it is apparent from the face of the Petition that Petitioner is not entitled to relief in this Court; as explained below, his claims either lack merit or should be presented in a civil rights action in the Southern District of California.
Since four of five enumerated factors support dismissal, it is recommended that this action be dismissed pursuant to Rule 41(b) and Local Rule 41-1. Local Rule 41-2 states that, "[u]nless the Court provides otherwise, any dismissal pursuant to [Local Rule] 41-1 shall be without prejudice." See also Fed. R. Civ. P. 41(b) ("[u]nless the dismissal order states otherwise," a dismissal pursuant to Federal Rule of Civil Procedure 41(b) operates as an adjudication on the merits absent exceptions that are not relevant here). In general, a court has discretion to dismiss an action under Rule 41(b) with or without prejudice. See Fed. R. Civ. P. 41(b); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996). Considering all of the circumstances, action is dismissed in its entirety without prejudice. B. Failure to Show Entitlement to Relief.
Rule 4 of the Rules Governing § 2254 Petitions provides as follows: "The clerk must promptly forward the petition to a judge under the court's assignment procedure, and the judge must promptly examine it. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." It is apparent that Petitioner is not entitled to relief in this Court for three reasons: (1) the Petition appears untimely and there is no apparent basis for equitable or statutory tolling, (2) the Petition appears unexhausted, and (3) the grounds for relief all appear to lack merit.
1. The Petition Appears Untimely.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a state prisoner ordinarily has one year from the date his conviction becomes final to file a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1)(A). Here, Petitioner was convicted and sentenced on August 10, 2017. (Dkt. 1 at 2.) He had sixty days to file a direct appeal. Cal. R. of Court, Rule 8.308(a). Absent tolling, Petitioner therefore had until October 9, 2018, to file his federal petition. Because Petitioner constructively filed his Petition on January 14, 2019, without tolling it is untimely under AEDPA. The Court set forth the standards for equitable and statutory tolling in its order to show cause (Dkt. 4), yet Petitioner failed to respond and provide any basis for tolling. Therefore, the Petition appears untimely.
2. The Petition Appears Unexhausted.
Exhaustion requires that a petitioner's claims be fairly presented to the highest court in a state court system even if that court's review is discretionary. O'Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999). For a petitioner in California state custody, this generally means the petitioner must have fairly presented his claims to the California Supreme Court. See id. at 845; Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (applying O'Sullivan to California). Petitioner does not allege to have exhausted any of his claims by fairly presenting them to the California Supreme Court. (See Dkt. 1 at 2-8.) Petitioner has not responded to the Court's orders to show that the Petition is exhausted and has declined to move for a Rhines stay to exhaust his claims. (See Dkt. 4.) Therefore, the Petition appears unexhausted.
3. The Grounds for Relief Appear to Lack Merit.
Petitioner raises five grounds for federal habeas relief, all of which appear to lack merit. (See Dkt. 1 at 5-6.) His Eight Amendment and Proposition 57 claims appear to be civil rights claim, not habeas claims. His Fourth Amendment claim is not cognizable on federal habeas review. Stone v. Powell, 428 U.S. 465, 481-82 (1976). His First Amendment claim is unintelligible. Finally, if Plaintiff was convicted under one of the California Penal Code sections tying restrictions on gun ownership to criminal history or mental illness, then his Second Amendment claim likely lacks merit. See District of Columbia v. Heller, 554 U.S. 570, 626 (2008) ("Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill ...."). Therefore, none of Petitioner's claims appear to entitle him to federal habeas relief. C. Failure to File IFP Application.
Petitioner has also failed to pay a filing fee or remedy the deficiencies in his IFP application, despite repeated direction from the Court to do so. (Dkts. 5, 7, 10, 12.) This provides an alternative ground to dismiss the Petition. See Culler v. Bd. of Prison Terms, 405 F. App'x 263, 264 (9th Cir. 2010) (memorandum) (affirming dismissal of § 2254 habeas petition for failure to pay filing fee or timely remedy deficiencies in IFP application); Young v. U.S., 465 F. App'x 597, 598 (9th Cir. 2012) (memorandum) (same); see also Scott v. LaMarque, 27 F. App'x 858, 859 (9th Cir. 2001) (memorandum) (affirming dismissal for petitioner's failure to comply with order to pay filing fee or show cause why he could not pay).
IV.
CONCLUSION
For the foregoing reasons, this action is hereby dismissed in its entirety without prejudice. DATED: December 2, 2019
/s/_________
GEORGE H. WU
UNITED STATES DISTRICT JUDGE Presented by: /s/_________
KAREN E. SCOTT
UNITED STATES MAGISTRATE JUDGE