1 MAR 12 Clerk, U.S. District Court IN THE UNITED STATES DISTRICT COURT District Of Montana FOR THE DISTRICT OF MONTANA BILLINGS DIVISION

CODY JOHNSTON, Cause No. CV 18-15-BLG-SPW-TJC Petitioner, ORDER AND FINDINGS AND vs. RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JAMES SALMONSON, Respondent.

This case comes before the Court on Petitioner Cody Johnston’s application for writ of habeas corpus under

, filed January 29, 2018. Johnston

is a state prisoner proceeding pro se.

I. Background Johnston was one of a group of petitioners that joined in filing what they characterized as an “En Masse Petition for Writ of Habeas Corpus-

as per Rule 23 of the Federal Rules of Civil Procedure.” (Doc. 2). The “en

masse” petitioners sought to challenge the constitutionality of the criminal

charging process utilized against them by the State of Montana. Jd. at 18-32. Johnston, and the additional petitioners, were notified that the Court would

not allow them to proceed as a group and that separate cases would be opened for

each. (Doc. | at 1-5). Petitioners were then ordered to respond individually to

advise the Court whether or not they wished to proceed and, if so, petitioners were

directed to each complete the Court’s standard habeas form. Jd. at 5-6. Johnston

did not respond to this Court’s order. i. Motion for Leave to Proceed in Forma Pauperis Johnston has moved this Court to be granted in forma pauperis status. (Doc. 3). Because there is no reason to delay this matter further, Johnston’s motion will be GRANTED. ii. | Motion to Dismiss Johnston asks this Court to dismiss Deliberate Homicide and Tampering with Physical Evidence convictions handed down in Montana’s Seventh Judicial

District Court, Richland County, in Cause No. DC-15-92. (Doc. 4 at 1).! The

argument is premised upon what Johnston believes to be a faulty and

unconstitutional state criminal charging process. Jd. at 1-12.2 This Court is not

able to provide Johnston the relief sought. Federal district courts, as courts of

original jurisdiction, do not serve as appellate tribunals to review errors allegedly committed by state courts. MacKay v. Pfeil,

(9 Cir. 1987); see

also Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers,

(1970)(“lower federal courts possess no power whatever to sit in direct

| See also Montana Correctional Offender Network: https://app.mt.gov/conweb/O ffender/3020512 (accessed March : ‘all of the “en masse” petitioners filed this identical motion, but each specified his individual state-court conviction(s).

review of state court decisions”). It would be entirely inappropriate for this Court

to review and dismiss the state convictions as suggested by Johnston. The Motion

to Dismiss (Doc. 4) is DENIED. iii,

Petition/Failure to Prosecute As set forth above, Johnston was ordered to advise the Court whether or not

he wished to proceed in this action and, if so, to complete the Court’s standard

habeas form. Johnston failed to timely respond to this Court’s order.

The Federal Rules of Civil Procedure apply in a habeas action to the extent

they are not inconsistent with the Rules Governing Section 2254 Cases in the

United States District Courts or other applicable law. See Rule 11, Section 2254

Rules; Mayle v. Felix,

(2005). Fed. R. Civ. P. 41(b) authorizes

the Court to dismiss an action “[i]f the plaintiff fails to prosecute” the action. The

Court may dismiss a case on its own motion without awaiting a defense motion.

See, e.g., Link v. Wabash Railroad Co.,

(1962); Hells Canyon Preservation Council v. United States Forest Serv.,

(9" Cir.

2005). In determining whether Petitioner’s failure to prosecute warrants dismissal

of the case, the Court must weigh 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 the defendants; (4) the public policy favoring

disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey v. King,

(9" Cir. 1988) (quoting Henderson

y. Duncan,

, 1423 (9th Cir. 1986)). “The first two of these factors

favor the imposition of sanctions in most cases, while the fourth factor cuts against

a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions.” Wanderer v. Johnson,

, 656 (9th Cir. 1990). “The public’s interest in expeditious resolution of litigation always favors

dismissal.” Yourish v. California Amplifier,

(9" Cir. 1999). Johnston has failed to file his response within the requisite timeframe. This factor

weighs in favor of dismissal. Likewise, the second factor supports dismissal. “The trial judge is in the

best position to determine whether the delay in a particular case interferes with

docket management and the public interest.” Pagtalunan v. Galaza,

(9" Cir. 2002). The Court cannot manage its docket if Johnston refuses to comply with the Court’s orders. Johnston’s case has consumed judicial resources and time

that could have been better spent on other matters. Therefore, this factor favors dismissal. The third factor requires the Court to weigh the risk of prejudice to the

Respondent. “To prove prejudice, a defendant must establish that plaintiff's actions impaired defendant’s ability to proceed to trial or threatened to interfere

with the rightful decision of the case.” Malone v. United States Postal Service,

(9" Cir. 1987). Johnston’s refusal to comply with the Court’s order

makes prejudice a foregone conclusion. The longer this matter sits, the more

prejudice to Respondent. ~The Court has considered less drastic alternatives. Alternatives may include

“allowing further amended complaints, allowing additional time, or insisting that

appellant associate experienced counsel.” Nevijel v. North Coast Life Insurance

Co.,

(9" Cir. 1981). Although less drastic alternatives to

dismissal should be considered, the Court is not required to exhaust all such

alternatives prior to dismissal. Jd. Johnston was provided with the Court’s

standard habeas form to complete and was afforded an adequate amount of time to

do so. Johnston failed to respond to the Court’s order. At this juncture, the Court

can envision no further alternatives to dismissal. The last factor weighs against dismissal because public policy favors disposition of cases on their merits. Hernandez v. City of El Monte,

(9" Cir. 1998). But in light of the other four factors favoring dismissal, the weight of this factor is slight. The Court will therefore recommend that this matter

be dismissed for failure to prosecute, pursuant to Fed. F. Civ. P. 41(b). Il. Certificate of Appealability “The district court must issue or deny a certificate of appealability when it

enters a final order adverse to the applicant.” Rule 11(a), Rules governing § 2254

Proceedings. A COA should issue as to those claims on which a petitioner makes

a “substantial showing of the denial of a constitutional right.”

(c)(2). The standard is satisfied if “jurists of reason could disagree with the

district court’s resolution of [the] constitutional claims” or “conclude the issues

presented are adequate to deserve encouragement to proceed further.” Miller-El v.

Cockrell,

(2003) (citing Slack v. McDaniel,

(2000)). Where a claim is dismissed on procedural grounds, the court must also

decide whether “jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Gonzalez v. Thaler,

(2012) (quoting Slack v. McDaniel,

(2000)). The claims advanced by Johnston do not appear to make a substantial

showing that he was deprived of a constitutional right. No reasonable jurist would

suggest the Court go forward with the case without Johnston’s participation. A

certificate of appealability should be denied because reasonable jurists would find

no reason to encourage further proceedings. Based on the foregoing, the Court enters the following: ORDER 1. Johnston’s Motion to Proceed in Forma Pauperis (Doc. 3) is GRANTED.

The Clerk of Court shall waive payment of the filing fee.

2. Johnston’s Motion to Dismiss (Doc. 4) is DENIED. RECOMMENDATION 1. Johnston’s Petition (Doc. 2) should be DISMISSED under Fed.

R. Civ. P. 41(b) for failure to prosecute. 2. The Clerk of Court should be directed to enter, by separate document, a

judgment in favor of Respondent and against Petitioner.

3. certificate of appealability should be DENIED. NOTICE OF RIGHT TO OBJECT TO FINDINGS & RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT

Mr. Johnston may object to this Findings and Recommendation within 14 days.3

(b)(1). Failure to timely file written objections may bar a de

novo determination by the district judge and/or waive the right to appeal. Mr. Johnston must immediately notify the Court of any change in his

mailing address by filing a “Notice of Change of Address.” Failure to do so may result in dismissal of this action without notice to him.

DATED this |‘ day of March, 2018.

Timothy J. if United States Magistrate Judge 3 Rule 6(d) of the Federal Rules of Civil Procedure provides that “[w]hen a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) (mail) . . . 3 days are added after the period would otherwise expire under Rule 6(a).” Therefore, since Johnston is being served by mail, he is entitled an additional three (3) days after the period would otherwise expire.