1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ROBERT MAURICE DAWKINS, Case No. 2:18-03926 SJO (ADS) 11 Petitioner, 12 v. ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS 13 DEBBIE ASUNCION, 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 Robert Maurice Dawkins (“Petitioner”). 19 [Dkt. No. 1]. On March 14, 2019, the Court granted Petitioner’s Motion for Stay to 20 exhaust his unexhausted claims in state court. [Dkt. No. 9]. The Court ordered 21 Petitioner to file a habeas petition in Los Angeles County Superior Court within thirty 22 days and to file brief status reports with this Court every sixty days thereafter. [Id., 23 p.4]. As of the date of this order, Petitioner has only requested extensions of time to file 24 a status report; he has not filed any status reports. [Dkt. Nos. 10, 12, 16]. 1 On October 1, 2019, the Court issued an Order to Show Cause why the petition 2 should not be dismissed for failure to prosecute his claims and/or follow orders to 3 update the court on the status of his exhaustion efforts. [Dkt. No. 14]. On October 28, 4 2019, Petitioner responded by filing another Request for Extension of Time. [Dkt. 5 No. 16]. On October 30, 2019, the Court denied the Request for Extension of Time.

6 [Dkt. No. 17]. The Court ordered Petitioner to file a status report detailing his efforts to 7 exhaust his unexhausted claims in state court by November 13, 2019 (“Order”). [Dkt. 8 No. 17]. The Court expressly warned that it would be Petitioner’s final opportunity to 9 submit a timely status report and that failure to timely file a response would result in a 10 recommendation that the action be dismissed as a mixed petition, for failure to 11 prosecute, and/or failure to obey court orders pursuant to Federal Rule of Civil 12 Procedure 41(b). [Id., p. 2]. Petitioner did not respond to the Order. 13 II. FAILURE TO PROSECUTE AND FAILURE TO COMPLY WITH COURT 14 ORDERS 15 Petitioner has not attempted to exhaust his unexhausted claims in state court. 16 Searches of the Los Angeles Superior Court and California Appellate Courts Case

17 Information websites reveal that Petitioner has not filed a habeas petition in any 18 California court since being ordered to on March 14, 2019. See Superior Court of 19 California, County of Los Angeles, http://www.lacourt.org; California Appellate Courts 20 Case Information, http://appellatecases.courtinfo.ca.gov. Moreover, Petitioner has 21 failed to submit any status reports to this Court regarding his exhaustion efforts in state 22 court. Petitioner’s failure to file a habeas petition in state court and failure to file timely 23 status reports signify his failure to prosecute this Petition. 24 1 On October 30, 2019, the Court issued an Order requiring Petitioner to file status 2 report detailing his exhaustion efforts. [Dkt. No. 17]. The Order expressly cautioned 3 Petitioner that failure to respond would result in a recommendation that the action be 4 dismissed under Federal Rule of Civil Procedure 41(b). [Id.]. Petitioner did not respond 5 to the Order. His failure to respond further evidences a lack of prosecution of the case.

6 See Link v. Wabash R.R.,

, 629–30 (1962); see also Fed. R. Civ. P. 41(b). 7 That Petitioner did not respond also demonstrates his failure to comply with the Court’s 8 orders. 9 In Carey v. King,

(9th Cir. 1988), the Ninth Circuit cited the 10 following factors as relevant to the Court’s determination of whether to dismiss an 11 action for failure to prosecute: “(1) the public’s interest in expeditious resolution of 12 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 13 defendants; (4) the public policy favoring disposition of cases on their merits, and 14 (5) the availability of less drastic sanctions.”

. 15 Upon consideration of the five Carey factors, the Court finds that Petitioner's 16 failure to prosecute his case and failure to comply with the Court’s orders warrant

17 dismissal. The first two Carey factors—the public's interest in expeditiously resolving 18 this litigation and the Court's interest in managing the docket—weigh in favor of 19 dismissal. The Court cannot hold this case in abeyance indefinitely awaiting Petitioner's 20 response to the Court's directive and to exhaust his unexhausted claims in state court. 21 The third factor, risk of prejudice to Respondent, also weighs in favor of dismissal since 22 a presumption of injury arises from the occurrence of unreasonable delay in prosecuting 23 an action. Anderson v. Air West, Inc.,

(9th Cir. 1976). The fourth 24 factor, the public policy favoring disposition of cases on their merits, is greatly 1 || outweighed by the factors in favor of dismissal. Finally, Petitioner has already been 2 || cautioned of the consequences of his failure to prosecute and ordered to show cause why 3 || the action should not be dismissed. Petitioner has been afforded multiple opportunities 4 || to file obey the Court’s orders yet has not done so; Petitioner’s claims remain 5 || unexhausted and Petitioner has made no effort to exhaust them. No sanction lesser 6 || than dismissal is feasible here. Thus, dismissal of this action is warranted under Federal 7 || Rule of Civil Procedure 41(b) and Local Rule 7-12. 8 CONCLUSION 9 IT IS THEREFORE ORDERED that the stay is lifted and this action is dismissed 10 || with prejudice pursuant to Federal Rule of Civil Procedure 41(b) and Central District of 11 || California Local Rule 7-12. 12 IT ISSO ORDERED. S. 14 || Dated: January 30, 2020 af Garr — THE HONORABLE S. JAMES OTERO 15 United States District Judge 16 || Presented by: 17 /s/ Autumn D. Spaeth THE HONORABLE AUTUMN D. SPAETH 18 || United States Magistrate Judge 19 20 21 22 23 24