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Nelson Romero v. William Stephens, Director ( 2015 )


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  •      Case: 14-40570      Document: 00513306003         Page: 1    Date Filed: 12/14/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40570
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 14, 2015
NELSON ROMERO,
Lyle W. Cayce
Clerk
Petitioner-Appellant
v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:13-CV-98
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Nelson Romero, Texas prisoner # 1127658, appeals the district court’s
dismissal of his
    28 U.S.C. § 2254
     petition under FED. R. CIV. P. 41(b) for failure
to prosecute and to comply with a court order. Romero urges that dismissal
was error.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-40570     Document: 00513306003      Page: 2    Date Filed: 12/14/2015
No. 14-40570
A district court may sua sponte dismiss an action for failure to prosecute
or obey a court order. Fed. R. Civ. P. 41(b); McCullough v. Lynaugh,
    835 F.2d 1126
    , 1127 (5th Cir. 1988). The district court stated that dismissal was without
prejudice, but, because the § 2254 petition would have been time-barred at the
time of dismissal, it was effectively with prejudice.        See Gray v. Fidelity
Acceptance Corp.,
    634 F.2d 226
    , 227 (5th Cir. 1981); see also
    28 U.S.C. § 2244
    (d).     Therefore, although review is for an abuse of discretion, a
heightened standard applies. Coleman v. Sweetin,
    745 F.3d 756
    , 766 (5th Cir.
2014).   This court will affirm “only where a clear record of delay or
contumacious conduct by the plaintiff exists and a lesser sanction would not
better serve the interests of justice.” Millan v. USAA Gen. Indem. Co.,
    546 F.3d 321
    , 326 (5th Cir. 2008) (internal quotation marks and citations omitted);
see Coleman, 745 F.3d at 766 & n.8.
The district court’s dismissal was based on Romero’s failure to comply
with its Order for an Answer, requiring him to respond to any dispositive
motion within 30 days. Romero asserts that during that period he filed a
motion for extension of time that was lost in the mail. But even if he did not,
his failure to comply with a single court order, particularly in light of his almost
immediate attempt to rectify his failure through the filing of a motion for
reconsideration, did not amount to a clear record of delay or contumacious
conduct warranting a dismissal with prejudice. See Millan,
    546 F.3d at 
    326-
27; see also McNeal v. Papasan,
    842 F.2d 787
    , 791 (5th Cir. 1988). Moreover,
there is no discussion in the record of other, lesser sanctions. See Millan,
    546 F.3d at 326
    .
Accordingly, under the circumstances described, the dismissal of
Romero’s § 2254 petition was an abuse of discretion.            The judgment is
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Case: 14-40570    Document: 00513306003    Page: 3   Date Filed: 12/14/2015
No. 14-40570
VACATED, and the case is REMANDED for further proceedings. We express
no opinion on the merits of his underlying habeas petition.
3