(HC) Ahadpour v. Whitaker ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALIDAD ALIBABA AHADPOUR, Case No. 1:19-cv-00215-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR FAILURE TO 13 v. PROSECUTE 14 MATTHEW G. WHITAKER, OBJECTIONS DUE IN FOURTEEN DAYS 15 Respondent. ECF No. 1 16 ORDER DIRECTING CLERK OF COURT TO ASSIGN CASE TO DISTRICT JUDGE 17 18 Petitioner Alidad Alibab Ahadpour, a former federal detainee without counsel, seeks a 19 writ of habeas corpus under 28 U.S.C. § 2241. ECF No. 1. On November 21, 2019, we ordered 20 petitioner to show cause why his petition should not be dismissed for lack of jurisdiction. ECF 21 No. 6. On December 6, 2019, the order was returned to this court unserved with a notation that 22 petitioner is no longer in federal immigration detention. Petitioner had until February 13, 2019 to 23 update his address with the court and he has failed to do so. Having received neither any 24 objections to our order to show cause nor notice of an updated address, we recommend that this 25 case be dismissed for failure to prosecute. 26 Discussion 27 The court may dismiss a case for a petitioner’s failure to prosecute or failure to comply 28 with a court order. See Fed. R. Civ. P. 41(b); Hells Canyon Pres. Council v. U.S. Forest Serv., 1 403 F.3d 683, 689 (9th Cir. 2005). Involuntary dismissal is a harsh penalty, but a district court 2 has duties to resolve disputes expeditiously and to avoid needless burden on the parties. See 3 Fed. R. Civ. P. 1; Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 4 Here, petitioner has not complied with our order to show cause why his petition should 5 not be dismissed. ECF No. 6. And he has not updated his address with the court, as required by 6 the local rules. Local Rule 183(b) (“If mail directed to a plaintiff in propria persona by the Clerk 7 is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing 8 parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the 9 action without prejudice for failure to prosecute.”). Therefore, we find that petitioner has failed 10 to prosecute his case and recommend its dismissal. 11 Certificate of Appealability 12 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 13 court’s dismissal of a petition; he may appeal only in limited circumstances. See 28 U.S.C. 14 § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 15 Cases requires a district court to issue or deny a certificate of appealability when entering a final 16 order adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 17 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court denies habeas relief on procedural 18 grounds without reaching the underlying constitutional claims, the court should issue a certificate 19 of appealability “if jurists of reason would find it debatable whether the petition states a valid 20 claim of the denial of a constitutional right and that jurists of reason would find it debatable 21 whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 22 484 (2000). “Where a plain procedural bar is present and the district court is correct to invoke it 23 to dispose of the case, a reasonable jurist could not conclude either that the district court erred in 24 dismissing the petition or that the petitioner should be allowed to proceed further.” Id. 25 Here, reasonable jurists would not find our conclusion debatable or conclude that 26 petitioner should proceed further. Thus, we recommend that the court decline to issue a 27 certificate of appealability. 28 1 | Order 2 The clerk of court is directed to assign this case to a district judge who will review these 3 | findings and recommendations. 4 | Findings and Recommendations 5 For the foregoing reasons, we recommend that the court dismiss this case for failure to 6 | prosecute. These findings and recommendations are submitted to the U.S. district judge presiding 7 | over the case under 28 U.S.C. § 636(b)(1)(B) and Local Rule 304. Within fourteen days of the 8 | service of the findings and recommendations, the parties may file written objections to the 9 | findings and recommendations with the court and serve a copy on all parties. Any such 10 | objections must be captioned “Objections to Magistrate Judge’s Findings and 11 | Recommendations.” The presiding district judge will then review the findings and 12 | recommendations under 28 U.S.C. § 636(b)(1)(C). 13 4 IT IS SO ORDERED. 15 ( Caan Dated: _ February 25, 2020 16 UNI STATES MAGISTRATE JUDGE 17 18 | No. 206. 19 20 21 22 23 24 25 26 27 28