1 JS-6 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 Case No. CV 23-5637 MWF (MRW) 13 JOSEPH WIDBY, ORDER DISMISSING HABEAS 14 Petitioner, ACTION 15 v. FRCP 41 16 PAT HORN, WARDEN, 17 Respondent. 18 19 20 The Court dismisses this habeas action for failure to prosecute and 21 failure to obey court orders. 22 * * * 23 1. This is a habeas action involving a state prisoner. In 2015, 24 Petitioner was convicted of assault with a deadly weapon, other charges, 25 and various sentencing enhancements. The trial court sentenced 26 27 28 1 Petitioner to a term of 21 years in prison. (Docket # 13 at 3.) The state 2 appellate court affirmed the conviction in 2017.1 3 2. In mid-2023, Petitioner filed this habeas action in federal court 4 challenging his conviction and sentence. (Docket # 1.) Magistrate Judge 5 Wilner screened the petition and directed the California Attorney General 6 to respond to it by answer or motion. (Docket # 8.) 7 3. In October 2023, the Attorney General moved to dismiss the 8 action on timeliness and exhaustion grounds. (Docket # 13.) Notably, the 9 Attorney General contended that the AEDPA statute of limitations 10 governing review of Petitioner’s conviction expired approximately four 11 years before he commenced the federal action. 12 4. Judge Wilner’s original screening order informed Petitioner of 13 his obligation to respond to a dismissal motion within 30 days. (Docket # 8 14 at 2.) Petitioner failed to file any timely response to the motion. 15 5. Judge Wilner then issued an order to show cause why the 16 action should not be dismissed. (Docket # 15.) The order warned 17 Petitioner that failure to respond would “result in a recommendation that 18 the action will be dismissed pursuant to Federal Rule of Civil Procedure 19 41(b)” for failure to prosecute the action. Petitioner did not respond to the 20 Court’s OSC, either. 21 * * * 22 6. Rule 41(b) provides that if a plaintiff “fails to prosecute or to 23 comply with these rules or a court order, a defendant may move to dismiss

24 1 The Attorney General contends that Petitioner did not file a petition for review in the state supreme court. However, a review of the court’s online 25 docket reveals that Petitioner did seek review (which was denied) in 2022. (People v. Widby, No. S274699 (Cal. 2022).) Given the delay in seeking review 26 and the volume of habeas actions that Petitioner filed at various levels of the state court system (Docket # 14 at 2), though, it is likely that his supreme court 27 filing was untimely. Because this action will be dismissed due to Petitioner’s failure to prosecute, it is unnecessary for this federal court to evaluate the 28 propriety of Petitioner’s state court submissions. 1 the action or any claim against it.” Dismissal also may be ordered by the 2 Court “sua sponte for failure to prosecute.” Dietz v. Bouldin,

, 3 47 (2016); Link v. Wabash R.R.,

(1962). 4 7. Dismissal of a civil action under Rule 41 may be appropriate to 5 advance the public’s interest in the expeditious resolution of litigation, the 6 court’s need to manage its docket, and to avoid the risk of prejudice to 7 defendants. Additionally, a court must consider the public policy favoring 8 disposition of cases on their merits and the availability of less drastic 9 alternatives in its evaluation. Applied Underwriters, Inc. v. Lichtenegger, 10

(9th Cir. 2019); Dreith v. Nu Image, Inc.,

, 11 788 (9th Cir. 2011). 12 8. In the present action, dismissal is appropriate. Petitioner did 13 not respond to the Attorney General’s original dismissal motion or a follow- 14 up court order regarding this action. The magistrate judge expressly 15 advised Petitioner that he risked dismissal of his case if he did not act. 16 Petitioner’s failure to respond to the motion or the Court’s order 17 demonstrates that he has no interest in advancing the action here. 18 9. By contrast, the Court, the state, and the public have a strong 19 interest in terminating this action. This is particularly true given that 20 Petitioner effectively abandoned his case by not responding to the Court’s 21 orders or the Attorney General’s dismissal motion regarding the apparent 22 untimeliness of the action. Furthermore, because Petitioner is a pro se 23 litigant who did not abide by the Court’s recent order, no sanction short of 24 dismissal will be effective in moving this case forward. Applied 25 Underwriters,

.

26 27 28 1 10. Accordingly, this action is DISMISSED with prejudice. See 2 | Fed. R. Civ. P. 41(b) (dismissal under rule ordinarily “operates as an 3 | adjudication on the merits”). 4 IT IS SO ORDERED. 5 G My Be 2 6 | Dated: March 11, 2024 Y le he : be 7 MICHAEL. FITZGERALD | United States District Judge Presented by: | 11 12 | HON. MICHAELR. WILNER 13 UNITED STATES MAGISTRATE JUDGE

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28