1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DONALD LEE REEVES, III, Case No.: 19-CV-1886-WQH(WVG)

12 Petitioner, REPORT AND 13 v. RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: 14 RAYMOND MADDEN, Warden, ORDER TO SHOW CAUSE RE 15 Respondent. DISMISSAL FOR FAILURE TO PROSECUTE AND LIFT STAY AND 16 ABEY 17 18 This case is currently stayed pursuant to Kelly v. Small,

(9th Cir. 19 2003) and King v. Ryan,

(9th Cir. 2009) (allowing court to stay habeas 20 petition containing only exhausted claims while allowing petitioner to proceed to state 21 court to exhaust additional claims). (See Order, Feb. 12, 2020, ECF No. 14.) Donald Lee 22 Reeves, III (“Petitioner”) is required to provide a status report every sixty days regarding 23 his progress in exhausting claims seven and eight of his original federal petition for writ of 24 habeas corpus in California state court. (Id. at 2.)1 25

26 27 1 Petitioner’s original federal habeas petition asserted eight grounds for relief, the first six of which were exhausted in state court: ground one challenged the sufficiency of the 28 1 On October 3, 2022, Petitioner filed a status report indicating he had conducted legal 2 research and “will draft a new writ based on what I just discovered, because I acknowledge 3 now that petitioner[’]s writ currently does not have any merit.” (Status Report 1, ECF No. 4 54 at 2.) Petitioner also indicated that he intended to file state bar complaints against his 5 trial and appellate attorneys. (Id.) 6 On November 17, 2022, Magistrate Judge Ruben B. Brooks issued an Order to Show 7 Cause which directed Petitioner to submit briefing on why the Court should not dismiss 8 this matter or, in the alternative, lift the stay and proceed on the claims in the First Amended 9 Petition. (“OSC”, ECF No. 55.) The Court granted two continuances of Petitioner’s filing 10 deadline, upon such requests from Petitioner. (ECF No. 58 and 61.) To date, Petitioner has 11 not filed any requests for continuances of his filing deadline, nor has he filed any response 12 to the Court’s November 17, 2022 OSC. 13 For the reasons set forth herein, the Court RECOMMENDS that Petitioner’s 14 unexhausted claims (grounds seven and eight) be dismissed for failure to prosecute, and 15 the Court should lift the stay and proceed with the exhausted claims (grounds one through 16 six) in Petitioner’s First Amended Complaint. 17 I. PROCEDURAL BACKGROUND 18 On September 30, 2019, Petitioner, a state prisoner proceeding pro se and in forma 19 pauperis, filed a Petition for Writ of Habeas Corpus pursuant to

raising 20 eight claims against Respondent Raymond Madden, Warden (“Respondent”). (ECF No. 21 1). Petitioner’s Writ of Habeas Corpus reasserted grounds one through six from his direct 22 23 24 murder convictions; grounds three and five asserted a lack of evidence as to robbery- 25 murder special circumstance findings; ground six alleged that two indeterminate sentences of life in prison without parole constituted cruel and unusual punishment under the 26 California and United States Constitutions; ground seven asserted that the trial court erred 27 by failing to remove his trial counsel, constructively denying him effective assistance of counsel; and ground eight contended that Petitioner's trial counsel was ineffective because 28 1 appeal to the California Court of Appeal and California Supreme Court, and added two 2 additional claims: ground seven which alleges that the trial court erred by failing to remove 3 his trial counsel, constructively denying him effective assistance of counsel; and ground 4 eight, which contends that Petitioner’s trial counsel was ineffective because he failed to 5 investigate potential defenses. (Id. at 6-13.) Petitioner concedes that grounds seven and 6 eight were not exhausted in state court. (Id. at 12-13.) Petitioner simultaneously filed a 7 Motion to Stay and Abey or Stay Petition and Dismiss Unexhausted Claims. (ECF No. 4). 8 On January 7, 2020, Magistrate Judge Ruben B. Brooks issued a Report and 9 Recommendation recommending that Honorable William Q. Hayes grant Petitioner’s 10 Motion for Stay pursuant to Kelly v. Small,

(9th Cir. 2003) and King v. Ryan, 11

(9th Cir. 2009), deny Petitioner’s Motion for Stay pursuant to Rhines v. 12 Weber,

(2005), and require Petitioner to file a status report every sixty days 13 to update the Court on the status of Petitioner’s progress in exhausting claims seven and 14 eight of his Petition. (ECF No. 11.) 15 On February 10, 2020, Petitioner filed the First Amended Petition. (ECF No. 13). 16 The First Amended Petition deleted the unexhausted claims (grounds seven and eight) of 17 Petitioner’s original Petition. (Id.) 18 On February 12, 2020, Judge Hayes adopted the Report and Recommendation in its 19 entirety, granting Petitioner’s Motion to Stay pursuant to Kelly v. Small,

(9th Cir. 2003) and King v. Ryan,

(9th Cir. 2009). (ECF No. 14.) Petitioner 21 was required to provide a status report every sixty days regarding his progress in exhausting 22 claims seven and eight of his original federal petition for writ of habeas corpus in California 23 state court. (Id. at 2.) 24 According to previous status reports, Reeves filed a habeas petition purporting to 25 seek relief on grounds seven and eight in San Diego Superior Court on October 2, 2019. 26 (See Pet’r’s Filing 9-395, ECF No. 17.) The petition was denied on October 9, 2019. (Id. 27 at 3-8.) Petitioner then filed a habeas petition with the California Court of Appeal, Fourth 28 District, on January 30, 2020. (See Pet’r’s Filing 5-410, ECF No. 16.) This petition was 1 denied on March 4, 2020. (See Status Report 2-3, ECF No. 28.) 2 Petitioner’s status reports since April 2020 have provided various reasons that he 3 has been unable to proceed with filing a petition for review with respect to claims seven 4 and eight in the California Supreme Court. On or after April 8, 2020, Petitioner was 5 transferred from Centinela State Prison to Kern Valley State Prison due to a mental health 6 emergency. (Status Report 2-4, ECF No. 23.) On October 5, 2020, December 11, 2020, 7 and February 1, 2021, he stated that he was unable to proceed with his petition for review 8 while at Kern Valley because he did not have access to his personal property, including his 9 legal materials, and was delayed transfer to permanent housing at Avenal State Prison due 10 to the COVID-19 pandemic. (See Status Reports, ECF Nos. 25, 27, 28.) In his March 5, 11 2021 status report, Reeves reported that he had finally been transferred to Avenal. (Status 12 Report 2, ECF No. 31.) On May 11, 2021, Petitioner advised that he was using the prison 13 grievance procedure to locate missing legal materials but was encountering difficulties due 14 to the unavailability of prison appeal forms and law library access. (Status Report 2-3, ECF 15 No. 34.) 16 In his status report filed on July 12, 2021, Petitioner stated that he was still in the 17 process of retrieving his legal paperwork, including two boxes that he believed were 18 confiscated by Kern Valley State Prison. (Status Report 2, 6-7, ECF No. 38.) He was trying 19 to resolve this and other problems but continued to encounter difficulties due to the 20 unavailability of prison appeal forms at Avenal. (Id.) His status reports filed on September 21 23, 2021, November 22, 2021, and January 21, 2022, indicated that he was continuing his 22 efforts to recover his legal materials. (See Status Reports, ECF Nos. 40, 42, 44.) On March 23 22, 2022, Petitioner reported that he had requested copies of legal materials from San Diego 24 Superior Court and was using the prison grievance process at Avenal to assist with his 25 efforts. (Status Report 1-2, ECF No. 46.) In his May 26, 2022 report, Reeves advised that 26 he not made any progress with retrieving his legal materials because he had been 27 transferred to a California Health Care Facility and was quarantined due to testing positive 28 for COVID-19. (Status Report 1, ECF No. 50.) In his status report filed on July 29, 2022, 1 Petitioner indicated that he was awaiting a response from San Diego Superior Court 2 regarding his request for his legal materials, and movement in his prison was limited due 3 to continued COVID-19 outbreaks. (Status Report 1, ECF No. 52.) 4 In his October 3, 2022 status report, Petitioner advised that he had just learned that 5 the requests he previously sent to San Diego Superior Court for copies of his legal materials 6 were sent to the wrong address. (Status Report 1, ECF No. 54.) Petitioner also stated he 7 had conducted legal research and “will draft a new writ based on what I just discovered, 8 because I acknowledge now that petitioner[’]s writ currently does not have any merit.” (Id. 9 at 2.) Reeves also indicated that he intended to file state bar complaints against his trial and 10 appellate attorneys. (Id.) 11 On November 17, 2022, Magistrate Judge Ruben B. Brooks issued an Order to Show 12 Cause which directed Petitioner to submit briefing on why the Court should not dismiss 13 this matter or, in the alternative, lift the stay and proceed on the claims in the First Amended 14 Petition. (“OSC”, ECF No. 55.) The Court stated it is unclear whether Petitioner 15 contemplates filing a new federal petition for writ of habeas corpus or a new state habeas 16 petition, and whether he plans to pursue state bar complaints against his trial and appellate 17 attorneys instead of proceeding with grounds seven and eight of his original federal 18 petition. (Id. at 3.) The Court also stated it is unclear whether Petitioner is conceding that 19 this current federal First Amended Petitioner, in which he deleted his unexhausted claims, 20 is without merit, or if he believes that only the unexhausted claims (grounds seven and 21 eight) are without merit. (Id. at 3-4.) 22 On January 25, 2023, upon Petitioner’s first request for a continuance, the Court 23 continued Petitioner’s filing deadline by 30 days to February 16, 2023. (ECF No. 58.) On 24 March 27, 2023, the Court granted Petitioner’s second request for a 30-day continuance, 25 extending his filing deadline to May 1, 2023. (ECF No. 61.) The Court cautioned Petitioner 26 that he must make a concerted, good faith effort to meet the May 1, 2023 deadline and that 27 any further request for continuances would be denied absent an unequivocal showing of 28 good cause. (Id.) 1 To date, Petitioner has not filed any requests for continuances of his filing deadline, 2 nor has he filed any response to the Court’s November 17, 2022 OSC. 3 II. LEGAL STANDARD 4 Federal Rule of Civil Procedure 41(b) grants district courts the authority to dismiss 5 actions sua sponte for failure to prosecute or to comply with court orders. Link v. Wabash 6 R.R.,

(1962) (“The power to invoke this sanction is necessary in order 7 to prevent undue delays in the disposition of pending cases and to avoid congestion in the 8 calendars of the District Courts.”); see also Benjamin v. Frauenheim, 9 EDCV151132RSWLKK,

, at *3 (C.D. Cal. Dec. 17, 2015), judgment 10 entered, EDCV151132RSWLKK,

(C.D. Cal. Dec. 17, 2015); see also 11 Jimenez v. Asuncion, LACV1606790VBFSK,

, at *2 (C.D. Cal. Jan. 5, 12 2018). A court may dismiss a petition if the petitioner fails to prosecute and follow the 13 deadlines outlined in a report and recommendation. See Pagtalunan v. Galaza,

(9th Cir. 2002). Additionally, if a petitioner has not responded to an Order to 15 Show Cause regarding his unexhausted claims, the court may dismiss the claims. See 16 Branch v. Dickinson, CV 09-07238 PSG (SS),

, at *3 (C.D. Cal. Jan. 8, 17 2010). 18 Dismissal, however, “is a harsh penalty and is to be imposed only in extreme 19 circumstances.” Henderson v. Duncan,

(9th Cir. 1986). In considering 20 whether to dismiss an action for failure to prosecute or to comply with a court order, the 21 Court must weigh five factors: “(1) the public’s interest in expeditious resolution of 22 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 23 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public 24 policy favoring disposition of cases on their merits.” Pagtalunan,

. 25 / / / 26 / / / 27 / / / 28 / / / 1 III. DISCUSSION 2 a. Dismissal of Petitioner’s Unexhausted Claims Due to Petitioner’s 3 Failure to Prosecute and Comply with Court Orders 4 Here, the five factors weigh in favor of dismissing Petitioner’s unexhausted claims, 5 grounds seven and eight, due to Petitioner’s failure to prosecute and abide by the Court’s 6 orders. 7 i. Expeditious Resolution of Litigation and The Court’s Need to Manage 8 Its Docket 9 The first two factors — public interest in expeditious resolution of litigation and the 10 need to manage the Court’s docket — weigh in favor of dismissal. The Court’s Order 11 staying this case warned Petitioner that “failure to strictly comply with the requirements 12 set out in that order may result in this action being dismissed for failure to prosecute or 13 comply with court orders, or they stay being lifted and the Court proceeding to adjudicate 14 only the six exhausted claims in the First Amended Petition. (ECF No. 14 at 3.) Likewise, 15 the Court has advised Petitioner multiple times of his requirement to timely file a response 16 to the Order to Show Cause. (ECF No. 55, 58, 61.) Petitioner, however, has failed to 17 communicate with the Court. Petitioner’s conduct hinders the Court’s ability to move this 18 case toward disposition and indicates that Petitioner does not intend to litigate this action 19 diligently. 20 ii. The Risk of Prejudice to Petitioner/Respondent 21 The third factor — prejudice to Respondent —also favors dismissal. The prejudice 22 to a defendant simply from the pendency of a lawsuit is insufficient, on its own, to warrant 23 dismissal. Ash v. Cvetkov,

(9th Cir. 1984). The risk of prejudice, 24 however, is related to the plaintiff’s reason for defaulting. Pagtalunan,

. 25 Here, although Petitioner previously requested two extensions of his deadline to file a 26 response to the OSC, Petitioner has not requested any further extensions of time or offered 27 any excuse for his failure to respond to the Court’s March 27, 2023 Order. The Court’s 28 March 27, 2023 Order set a deadline of May 1, 2023 for Petitioner to respond. As of the 1 date of this order, more than two months after the May 1, 2023 deadline, Petitioner has 2 failed to communicated any requests for extension nor provided any reason for his failure 3 to respond to the OSC. Where a party offers a poor excuse for failing to comply with a 4 court’s order, the prejudice to the opposing party is sufficient to favor dismissal. Yourish 5 v. Cal. Amplifier,

, 991-92 (9th Cir. 1999). Here, Petitioner has offered no 6 excuse for failing to file a response and therefore the “prejudice” element favors dismissal. 7 iii. The Availability of Less Drastic Alternatives 8 The fourth factor — the availability of less drastic sanctions — ordinarily counsels 9 against dismissal. The Court has, however, attempted to avoid outright dismissal by 10 granting Petitioner two extensions of time to file his response to the OSC. The Court is also 11 not recommending that Petitioner’s exhausted claims, grounds one through six, be 12 dismissed. The Court has, therefore, explored meaningful alternatives to dismissal. See 13 Henderson,

(“The district court need not exhaust every sanction short of 14 dismissal before finally dismissing a case, but must explore possible and meaningful 15 alternatives.”). Sanctions other than dismissal of Petitioner’s unexhausted claims do not 16 appear to be appropriate given that Petitioner has failed to participate in his own litigation. 17 iv. The Public Policy Favoring Disposition of Cases on Their Merits 18 The fifth factor — public policy favoring disposition of cases on their merits — also 19 ordinarily weighs against dismissal. Notwithstanding this policy, “it is the responsibility of 20 the moving party to move towards that disposition at a reasonable pace, and to refrain from 21 dilatory and evasive tactics.” Morris v. Morgan Stanley & Co.,

(9th Cir. 22 1991). Petitioner has not discharged this responsibility in two respects despite having 23 ample time. In the first respect, the Court has provided Petitioner approximately seven- 24 and-a-half months to respond to the Court’s OSC. In the second respect, this case was 25 stayed on February 11, 2020. To date, Petitioner has had three years to exhaust his seventh 26 and eight claim and demonstrate his efforts to move this case towards disposition at a 27 reasonable pace. Under these circumstances, the public policy favoring resolution of 28 disputes on the merits does not outweigh Petitioner’s failure to prosecute and comply with | || the Court’s orders. 2 b. Dismissal of Petitioner’s Unexhausted Claims is Warranted 3 Based upon the foregoing, the Court concludes that dismissal of the unexhausted 4 claims is warranted under Rule 41(b). The Court recommends dismissal of the unexhausted 5 ||claims on the additional basis of Petitioner’s failure to prosecute and obey court orders. 6 || Petitioner was advised in the Court’s OSC and the two orders extending the deadline to file 7 ||a response about the possibility of dismissal in the event of a failure to file a response to 8 ||the OSC. (ECF No. 55, 58, 61.) In addition, Petitioner will be given further notice by 9 ||service of this Report and Recommendation. Petitioner will also have the opportunity to 10 || file Objections to this Report and Recommendation if he wishes to contest the dismissal of 11 unexhausted claims. 12 c. Lifting Stay and Proceeding with Petitioner’s Exhausted Claims 13 In accordance with the Court’s analysis above, the Court further recommends that 14 || the stay on Petitioner’s exhausted claims (grounds one through six) be lifted, and the Court 15 || proceed with Petitioner’s First Amended Complaint. 16 IV. CONCLUSION AND RECOMMENDATION 17 IT IS RECOMMENDED that the District Court issue an Order: (1) accepting and 18 |/adopting this Report and Recommendation; (2) dismissing Petitioner’s unexhausted 19 claims, grounds seven and eight; and (3) lifting the stay and abeyance on Petitioner’s 20 |/exhausted claims, grounds one through six, and proceeding with Petitioner’s First 21 || Amended Petition. 22 IT IS SO ORDERED. 23 || Dated: July 6, 2023 | Se 24 5 Hon. William V. Gallo United States Magistrate Judge 26 27 28