(HC) Simpson v. Black ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HAROLD ROCHELLE SIMPSON, Case No. 1:21-cv-01121-JLT-EPG-HC 12 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT’S MOTION TO 13 v. DISMISS AND DISMISS PETITION FOR WRIT OF HABEAS CORPUS WITHOUT 14 SUPERIOR COURT OF MERCED, PREJUDICE 15 Respondent. (ECF No. 13) 16 17 Petitioner Harold Rochelle Simpson is proceeding pro se with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner challenges various pretrial issues in his 19 Merced County Superior Court criminal proceedings. As Petitioner has failed to exhaust state 20 judicial remedies with respect to the claims he raises in the petition and mail has been returned as 21 undeliverable more than sixty-three days ago, the Court finds that dismissal of the petition 22 without prejudice is warranted for nonexhaustion and failure to prosecute. 23 I. 24 BACKGROUND 25 On July 22, 2021, Petitioner filed a federal habeas petition in the Sacramento Division of 26 the United States District Court for the Eastern District of California. (ECF No. 1). On July 26, 27 2021, the petition was transferred to the Fresno Division. (ECF No. 3). In the petition, Petitioner challenges various pretrial issues in his Merced County Superior Court criminal proceedings, 1 such as the trial court’s failure to confer with Petitioner about California Penal Code section 2 1370, failure to communicate with Petitioner about court-ordered medication, refusal to 3 substitute new counsel, and refusal to allow Petitioner to personally waive preliminary hearing. 4 (ECF No. 1 at 6–7).1 On August 5, 2021, Petitioner filed a “first amended petition,” asserting a 5 speedy trial claim. (ECF No. 9). The Court has construed the “first amended petition” as a 6 supplement to the petition. (ECF No. 11). 7 On October 8, 2021, Respondent filed a motion to dismiss the petition based on Younger 8 v. Harris, 401 U.S. 37 (1971), and nonexhaustion. (ECF No. 13). To date, no opposition or 9 statement of non-opposition has been filed, and the time for doing so has passed. On October 28, 10 2021, the Court issued an order of clarification regarding district judge availability to hear 11 matters in the Eastern District of California. (ECF No. 16). On November 22, 2021, the order of 12 clarification was returned to the Court as undeliverable with a notation of “unable to forward.” 13 II. 14 DISCUSSION 15 A. Exhaustion 16 “As a prudential matter, courts require that habeas petitioners exhaust all available 17 judicial and administrative remedies before seeking relief under § 2241.” Ward v. Chavez, 678 18 F.3d 1042, 1045 (9th Cir. 2012) (citations omitted). The exhaustion requirement is subject to 19 waiver in § 2241 proceedings if pursuing available remedies would be futile. Id. A petitioner in 20 state custody can satisfy the exhaustion requirement by providing the highest state court with a 21 full and fair opportunity to consider each claim before presenting it to the federal court. 22 O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 365 (1995); 23 Picard v. Connor, 404 U.S. 270, 276 (1971). Here, Petitioner has failed to exhaust all available 24 judicial remedies because he has not sought relief in the California Supreme Court. (ECF No. 1 25 at 2–3, 6–7; ECF No. 13 at 4). Accordingly, dismissal of the petition for nonexhaustion is 26 warranted.2 27 1 Page numbers refer to ECF page numbers stamped at the top of the page. 2 As the Court finds that the petition should be dismissed for nonexhaustion, the Court will not address Respondent’s 1 B. Failure to Prosecute 2 Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action 3 for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, failure to 4 comply with the court’s local rules, or failure to comply with the court’s orders. See, e.g., 5 Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing federal court’s inherent power 6 to “act sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council 7 v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an 8 action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to 9 prosecute or comply with the rules of civil procedure or the court’s orders). 10 It is Petitioner’s responsibility to keep the court apprised of his current address at all 11 times. See Local Rule 183(b). Absent notice of a party’s change of address, service of documents 12 at the prior address of the party is fully effective. Local Rule 182(f). Furthermore, if mail 13 directed to a pro se petitioner is returned by the U.S. Postal Service, and if the petitioner fails to 14 notify the court within sixty-three days thereafter of a current address, the Court may dismiss the 15 action without prejudice for failure to prosecute. Local Rule 183(b). 16 Here, the Court’s order of clarification was returned to the Court as undeliverable with a 17 notation of “unable to forward.” Petitioner has not notified the Court of his current address, and 18 it has been over sixty-three days since mail was returned by the U.S. Postal Service. Therefore, 19 the petition should be dismissed without prejudice for failure to prosecute. 20 III. 21 RECOMMENDATION 22 Accordingly, the undersigned HEREBY RECOMMENDS that: 23 1. Respondent’s motion to dismiss (ECF No. 13) be GRANTED; and 24 2. The petition for writ of habeas corpus be DISMISSED WITHOUT PREJUDICE for 25 nonexhaustion and failure to prosecute. 26 This findings and recommendation is submitted to the assigned United States District 27 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 1 | FOURTEEN (14) days after service of the findings and recommendation, any party may file 2 | written objections with the Court and serve a copy on all parties. Such a document should be 3 | captioned “Objections to Magistrate Judge’s findings and recommendation.” Replies to the 4 | objections shall be served and filed within fourteen (14) days after service of the objections. The 5 | assigned United States District Court Judge will then review the Magistrate Judge’s ruling 6 | pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within 7 | the specified time may waive the right to appeal the District Court’s order. Wilkerson v. 8 | Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 9 | Cir. 1991)). 10 i IT IS SO ORDERED. 12| Dated: _ February 9, 2022 [see ey —— 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28