Opinion
Case No. 8:18-00720 VAP (ADS)
03-27-2019
GERARDO SANCHEZ MURATALLA, Petitioner, v. RAYMOND MADDEN, Warden, Respondent.
FINAL REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Final Report and Recommendation is submitted to the Honorable Virginia A. Phillips, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I. INTRODUCTION
Pending before the Court is a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") filed by Gerardo Sanchez Muratalla ("Petitioner"), a California state prisoner. [Dkt. No. 1]. The Respondent, Raymond Madden, Warden, filed a Motion to Dismiss the Petition ("Motion to Dismiss") solely on the basis that the Petition is time-barred by the one-year statute of limitations. [Dkt. No. 7, pp. 2-5]. Petitioner was given the opportunity to substantively respond to the Motion to Dismiss but has not done so. See [Dkt. Nos. 9, 11-22]. A review of the Petition, the Motion to Dismiss, the Court's records, and public records reveals that the Petition is untimely, and amendment cannot cure the deficiency. Moreover, Petitioner's failures to respond to the Court's orders evidence a lack of prosecution on his part. Accordingly, the Court recommends granting the Motion to Dismiss and dismissing the Petition with prejudice.
All citations to electronically-filed documents refer to the CM/ECF pagination.
Where necessary, the Court takes judicial notice of the public records. See Fed. R. Evid. 201(b)(2) ("The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned."); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) ("[A] court may take judicial notice of its own records in other cases, as well as the records of an inferior court in other cases."); Harris v. Cty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (holding that a court may take judicial notice of undisputed matters of public record).
On March 4, 2019, the Court issued an initial Report and Recommendation that found the Petition untimely. [Dkt. No. 24]. On March 20, 2019, Petitioner filed objections to the Report and Recommendation, which argued that Petitioner is entitled to equitable tolling. [Dkt. No. 25]. These objections are addressed in this Final Report and Recommendation. Respondent did not file any objections to the initial Report and Recommendation, and as such, no additional objection period is warranted.
II. RELEVANT BACKGROUND
A. State Court Proceedings
On April 7, 2015, a jury convicted Petitioner of six counts of lewd or lascivious actions with a minor (his two step-granddaughters) in Superior Court of Orange County case number 13CF3416. [Dkt. No. 8-1, Lodged Document ("LD") 1, p. 1]. Petitioner was sentenced to a term of thirty years to life on May 1, 2015. [Id.]. On June 12, 2015, Petitioner filed a notice of appeal and, on December 28, 2015, Petitioner's appellate counsel filed a Wende brief in the California Court of Appeal and asked the court to review the record to determine whether there were any arguable matters but raised no specific issues. California Appellate Courts Case Information 2nd Appellate District, http://appellatecases.courtinfo.ca.gov, (Appellate case number G052066); [Dkt. No. 8-2, LD 2]. On March 10, 2016, the Court of Appeal filed an opinion finding no arguable issue on appeal and affirmed the trial court's judgment. [Dkt. No. 8-3, LD 3, p. 7]. Petitioner did not appeal to the California Supreme Court. California Appellate Courts Case Information Supreme Court, http://appellatecases.courtinfo.ca.gov, (Trial case number 13cf3416, Appellate case number G052066).
Then, more than a year later, on October 12, 2017, Petitioner constructively filed a petition for writ of habeas corpus in the California Supreme Court, case number S245080. [Dkt. No. 8-4, LD 4]. On January 17, 2018, the California Supreme Court denied the petition. See [Dkt. No. 8-5, LD 5].
B. Federal Court Proceedings
On April 5, 2018, Petitioner constructively filed the instant Petition pursuant to 28 U.S.C. § 2254. [Dkt. No. 1]. The Petition raises the following two grounds for relief: (1) Petitioner's Sixth Amendment right to present a defense was violated by trial counsel's failure to investigate and prepare for trial; and (2) Petitioner's Eighth Amendment right against cruel and unusual punishment was violated when the trial court sentenced him to 30 years to life. [Dkt. No. 1, pp. 6-7].
On May 24, 2018, Respondent filed a Motion to Dismiss. [Dkt. No. 7]. In the Motion to Dismiss, Respondent alleges that the instant Petition is barred by the one-year statute of limitations. [Dkt. No. 7-1, p. 3]. Moreover, Respondent alleges that Petitioner did not file a habeas petition in state court until after the AEDPA limitations period had expired. [Id., p. 4]. Respondent further alleges that Petitioner has not shown he has been pursuing his rights diligently or that extraordinary circumstances prevented him from filing a timely federal habeas petition. [Id., pp. 4-5]. Therefore, Respondent concludes that neither statutory tolling nor equitable tolling apply, and the instant Petition is 351 days late. [Dkt. No. 7-1, pp. 4-5].
On June 20, 2018, Petitioner filed a request for extension of time ("First Request"). [Dkt. No. 11]. The First Request explicitly asks for a 30-day extension of time to file an opposition to the Motion to Dismiss. [Id., p. 1-2]. The Court granted the First Request and ordered Petitioner to file and serve an opposition to the Motion to Dismiss by no later than July 27, 2018. [Dkt. No. 12].
On July 25, 2018, Petitioner filed a pleading titled "Permit For A Chance To Accept My Habeas Corpus Petition." [Dkt. No. 13]. Within the document, Petitioner explains that he needs help addressing the legal issues in his Petition and acknowledges that he is late in filing an "appeal." [Id., p. 2]. The Court construed this pleading as a second request for extension of time ("Second Request") and ordered Petitioner to file and serve an opposition to the Motion to Dismiss by August 27, 2018. [Dkt. No. 14].
Instead of an opposition, Petitioner filed another request for extension of time on August 30, 2018 ("Third Request"). [Dkt. No. 15]. In the Third Request, Petitioner clearly asks for a 30-day extension to research and review his legal documents. [Id.]. Therefore, the Court granted the Third Request and ordered Petitioner file and serve an opposition to the Motion to Dismiss by September 26, 2018. [Dkt. No. 16].
On September 24, 2018, Petitioner filed another pleading titled "Permit For A Chance To Accept My Habeas Corpus Petition." [Dkt. No. 17]. In this pleading, Petitioner explains the reason for his "delay," including incarceration, ignorance, and inability to communicate with a lawyer. [Id., p. 1]. Petitioner further explains that another inmate helps him with his filings. [Id., p. 2]. Petitioner concludes by asking the Court to "forgive [his] fault" and accept his Petition for review. [Id.].
Having construed Petitioner's prior pleading with the same title as a request for extension of time, the Court construed the September 24, 2018, pleading as another request for extension of time ("Fourth Request"). The Court granted Petitioner until October 26, 2018 to file an opposition to the Motion to Dismiss. [Dkt. No. 18]. The Court also cautioned Petitioner that further extensions would not be granted absent a showing of extraordinary circumstances. [Id.].
On November 5, 2018, Petitioner filed a pleading titled "Permit For Accept Habeas Corpus Petition." [Dkt. No. 19]. This pleading largely repeats the contents of Petitioner's Fourth Request. Petitioner again explains that another inmate helps him write his pleadings because he lacks legal training and cannot afford an attorney. For the first time, Petitioner asserts that he does not have the ability to speak and write English. [Id., pp. 1-2]. Unlike Petitioner's First and Third Requests, the November 5, 2018, pleading does not explicitly request an extension of time. Instead, Petitioner asserts that he has "diligently sought assistance in proving [his] innocence" and those are the "circumstances that [he is] late to fill out on time [his] Habeas Corpus Petition." [Id., p. 2].
It became unclear to the Court whether Petitioner's repeated filings are requests for more time to respond to the Motion to Dismiss or if they are his response to the Motion to Dismiss. Therefore, on November 14, 2018, the Court issued an Order to Show Cause Why Petition Should Not be Dismissed ("Order to Show Cause"). [Dkt. No. 20]. In the Order to Show Cause, the Court specifically orders Petitioner to file a pleading clearly titled "Opposition to the Motion to Dismiss" if he does not agree that his Petition should be dismissed. [Id., p. 3]. The Court further explains that, in the Opposition to the Motion to Dismiss, Petitioner should tell the Court why he does not agree to dismissal and whether he believes statutory and equitable tolling apply in his case. [Dkt. No. 20, p. 3]. The Order to Show Cause directs Petitioner to file a pleading clearly titled "Request for Extension of Time" if he seeks additional time to prepare an opposition. [Id.]. Finally, the Court cautions Plaintiff that failure to timely file an opposition may result in a recommendation that the action be dismissed for failure to prosecute and obey Court orders pursuant to Federal Rule of Civil Procedure 41(b). [Id., p. 4].
On December 4, 2018, the Court received a "Traverse" and "Motion to Show Cause" filed by Petitioner. [Dkt. No. 21]. In the Traverse, Petitioner "admits that Respondent is correct on the citing of the tolling time" and adds that he "understands if the Court ignores his petition for a hearing due to the length of time but at the same time asks the Court to admit his Traverse and review the merits claims in his Petition." [Id., p. 2]. In the Motion to Show Cause, another inmate, Carlos Brocatto, writes to explain that he has been helping Petitioner file pleadings for this action because Petitioner "is not learned in the art of law". [Id., p. 3-4]. However, during the time Mr. Brocatto was transferred to a facility separate from Petitioner, they had trouble communicating with each other, which resulted in the delay in filing a response to the Motion to Dismiss. [Id.]. Mr. Brocatto states that he is willing to help Petitioner now that they are in the same facility again and asks the court to accept the Traverse. [Id., p. 4].
The Court accepted Mr. Brocatto's explanation for the delay in Petitioner's response to the Motion to Dismiss and, on January 29, 2019, issued a second Order to Show Cause ("Second Order to Show Cause") to give Petitioner one last opportunity to explain why he believes his Petition should be not dismissed as untimely. [Dkt. No. 22]. The Second Order to Show Cause requires an Opposition to the Motion to Dismiss within twenty-one (21) days and cautions that the Court would not grant any further extensions of time. [Dkt. No. 22, p. 3]. Petitioner was required to file the Opposition by February 19, 2019. [Id.].
As of March 4, 2019, Petitioner had not filed an Opposition or otherwise communicated with the Court regarding this case, so the Court issued an initial Report and Recommendation ("Initial Report and Recommendation") which recommends that the Petition be dismissed with prejudice. [Dkt. No. 24]. In the Initial Report and Recommendation, the Court finds that the Petition is facially untimely, that Petitioner is not entitled to delayed accrual of limitations period, and that Petitioner is not entitled to statutory or equitable tolling. [Id., pp. 7-12]. Moreover, because Petitioner had not filed an Opposition, the Court reasoned that Petitioner failed to prosecute his case and obey the Court's orders. [Id., p. 12].
On March 20, 2019, the Court received Petitioner's Written Objections to Magistrate Judge's Report and Recommendation ("Objections"). [Dkt. No. 25]. Petitioner specifically objects to the Court's finding that he is not entitled to equitable tolling. [Id., pps. 1-2].
III. THE PETITION IS UNTIMELY
A. The Petition is Facially Untimely
Here, the Petition is facially untimely. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a one-year limitation period for a state prisoner to file a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1); see also Wall v. Kholi, 562 U.S. 545, 550 (2011); Jimenez v. Quarterman, 555 U.S. 113, 114 (2009). Pursuant to 28 U.S.C. § 2244(d)(1), the limitation period begins to run from the latest of
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;At its most basic level, the limitation period begins to run "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). For petitioners who do not appeal to the state's highest court, their judgments become final when the time for seeking such review expires. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). As such, courts look to "state-court filing deadlines when petitioners forgo state-court appeals." Id. at 152; see also McMonagle v. Meyer, 802 F.3d 1093, 1097 (9th Cir. 2015) (looking to California law to determine when direct review of a California misdemeanor conviction concludes).
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
As applicable to the facts of this particular case, in California state courts, a defendant has sixty days to appeal a judgment of conviction. See Cal. R. Ct. 8.308(a) (formerly Cal. R. Ct. 30.1); Cal. Penal Code § 1237.5; see also Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006) (finding a conviction finalized sixty days after the judgment of conviction). The Court of Appeal's decision becomes final in that court thirty days after its filing. Cal. R. Ct. 8.264(b)(1). Then, a petition for review to the California Supreme Court must be filed within ten days after the Court of Appeal's decision becomes final. Cal. R. Ct. 8.500(e)(1). Altogether, a petitioner's judgment of conviction becomes final for federal habeas purposes forty days after the Court of Appeal issues its decision. See Gaston v. Palmer, 417 F.3d 1030, 1033 (9th Cir. 2005) (finding that petitioner's conviction became final forty days after the California Court of Appeal dismissed his direct appeal).
Here, Petitioner's direct appeal was dismissed by the Court of Appeal on March 10, 2016 and became final in that court thirty days later, on April 9, 2016. [Dkt. No. 8-3, LD 8]. Pursuant to California Rule of Court 8.500 (e)(1), the deadline to file a petition for review in the California Supreme Court was April 19, 2016. Petitioner did not seek direct review with the California Supreme Court. California Appellate Courts Case Information Supreme Court, http://appellatecases.courtinfo.ca.gov, (Trial case number 13cf3416, Appellate case number G052066). As a result, Petitioner's conviction became final by the conclusion of the period to seek direct review, April 19, 2016, for purposes of triggering the one-year statute of limitations under AEDPA. See McMonagle, 802 F.3d at 1097. As such, the statute of limitations for Petitioner to file for federal habeas relief under AEDPA expired on April 19, 2017. Petitioner constructively filed the instant federal habeas petition on April 5, 2018, which is 716 days after his conviction became final by the conclusion of direct review and 351 days after the statute of limitations period expired. As a result, the Petition is untimely on its face.
B. Petitioner is Not Entitled to Delayed Accrual of Limitations
From the face of the Petition, Petitioner does not have any basis for contending that he is entitled to a later commencement date for the statute of limitations. First, Petitioner does not assert that he was impeded from filing his federal petition by unconstitutional state action. See 28 U.S.C. § 2244(d)(1)(B). Second, his claims are not based on a federal constitutional right that was newly recognized by the United States Supreme Court and made retroactively applicable to cases on collateral review. See 28 U.S.C. § 2244(d)(1)(C). Finally, Petitioner has been long aware of the underlying factual predicates of his two grounds for relief since was he was tried and sentenced in 2016. 28 U.S.C. § 2244(d)(1)(D); see also Hasan v. Galaza, 254 F.3d 1150, 1154 n. 3 (9th Cir. 2001) (noting that the limitation period under § 2244(d)(1)(D) begins running when petitioner knew of facts underlying the claims, not when he realized their "legal significance"). Petitioner here is thus not entitled to a later trigger date under 28 U.S.C. § 2244(d)(1).
C. Petitioner is Not Entitled to Statutory or Equitable Tolling
1. Statutory Tolling
In certain cases, a habeas petition can "be timely, even if filed after the one-year time period has expired, when statutory or equitable tolling applies." Jorss v. Gomez, 311 F.3d 1189, 1192 (9th Cir. 2002). AEDPA provides for statutory tolling while an appeal is pending before a higher state court as well as during the reasonable time between a lower court's judgment and the filing of an appeal in the next court. 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536 U.S. 214, 219-21 (2002); see e.g. Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir. 2011) (holding that an 81-day delay was "far longer than the Supreme court's thirty-to-sixty-day benchmark for California's 'reasonable time' requirement.").
Here, Petitioner has not shown that he is entitled to statutory tolling. Petitioner is not entitled to statutory tolling because he did not constructively file his state habeas petition until October 12, 2017, which was 176 days after the AEDPA statute of limitations period had already expired. See [Dkt. No. 11-8, LD 8]. Statutory tolling "does not permit the reinitiation of the limitations period that has ended before the state petition was filed." Ferguson v. Pamateer, 321 F.3d 820, 823 (9th Cir. 2003).
2. Equitable Tolling
Equitable tolling applies when a petitioner shows "(1) that he has been pursuing his claims diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010). The untimeliness could not be a result of "oversight, miscalculation or negligence on the petitioner's part." Walderon-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). The Ninth Circuit has recognized that federal habeas petitioners who lack English language ability but are denied access to legal materials in their native language and cannot procure the assistance of a translator during the running of the AEDPA limitations period may be entitled to equitable tolling. Mendoza v. Carey, 449 F.3d 1065, 1071 (9th Cir. 2006). However, a petitioner seeking equitable tolling based on language barriers "must, at a minimum, demonstrate that during the running of the AEDPA time limitation, he was unable, despite diligent efforts, to procure either legal materials in his own language or translation assistance from an inmate, library personnel, or other source." Id. at 1070.
To qualify for equitable tolling, a petitioner must allege facts to substantiate his diligent efforts to timely file and establish that some extraordinary circumstance prevented his timely filing. Petitioner has not done so here. First, Petitioner has not provided the Court with any facts to establish his diligent efforts to timely file the petition. Rather, each and every filing by Petitioner relate to the absence of his jailhouse lawyer from May 2018 to approximately November 2018, long after the AEDPA state of limitations had expired. [Dkt Nos. 11, 13, 15, 17, 19, 21]. As such, the absence of his jailhouse lawyer for a few months in 2018 is insufficient to establish an extraordinary circumstance that prevented his timely filing of his federal habeas petition by April 19, 2017. This fact alone establishes that Petitioner is not entitled to equitable tolling.
Second, simply claiming a lack of legal sophistication and language limitations, without more, is not sufficient to obtain equitable tolling. To the extent Petitioner seeks equitable tolling because he lacked counsel, no such basis for relief exists, as petitioners do not have a constitutional right to counsel in collateral proceedings. See Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (finding petitioner not entitled to equitable tolling in part because "in the postconviction context . . . prisoners have no constitutional right to counsel"). However, in his Objections, Petitioner asserts for the first time, without any factual support, that he was "never provided access to AEDPA related materials translation in Petitioner's language" and the "lack of access to Spanish-language legal materials prevented Petitioner from learning about AEDPA's deadline, to constitute extraordinary circumstances for equitable tolling purposes." [Dkt. No. 25, pp. 1-2].
The Objection is insufficient to establish Petitioner is entitled to equitable tolling. First, the assertion is stated for the first time after numerous opportunities in which Petitioner, and his jailhouse lawyer, only asserted Petitioner's lack of legal knowledge. Second, the assertion is only a bare recitation of language from the case law that was cited in the Initial Report and Recommendation, the document to which Petitioner is responding. Petitioner provides no supporting facts or detail, no declaration under oath, and as such, provides no evidence supporting the assertion. On the other hand, the record in this case contradicts the bald assertion because it reflects a number of filings by Petitioner, not his jailhouse lawyer, handwritten in English. Moreover, the record reflects that Petitioner has been able to find translation and legal help from fellow inmates. [Dkt. Nos. 19, 21]. Given the contrary record in this case, Petitioner's simple assertion of language from caselaw, without additional supporting facts, is insufficient to meet Petitioner's burden to establish a basis for equitable tolling.
In his Objections, Petitioner cites to Pabon v. Mahanoy, 654 F.3d 385 (3rd Cir. 2011) and Whalem/Hunt v. Early, 233 F.3d 1148 (9th Cir. 2000). [Dkt. No. 25, p. 1]. Neither case supports Petitioner's request for equitable tolling. In both cases, a federal Court of Appeals remanded a facially untimely habeas petition to the District Court to hold an evidentiary hearing and develop the record concerning whether each petitioner was entitled to equitable tolling. Pabon, 654 F.3d at 404; Whalem, 233 F.3d at 1149. Although the petitioners in both cases argued that their lack of access to legal materials entitled them to equitable tolling, each alleged specific and concrete facts to substantiate their claims. See Pabon, 654 F.3d at 392 ("[B]ased on the documents Pabon submitted with his objections to the R & R, we count ten or more efforts where he sought assistance, both before and after the AEDPA deadline); Whalem, 233 F.3d at 1149 ("[P]etitioner stated that the law library of the prison in which he is incarcerated did not have legal materials describing AEDPA until June 1998"). Applying Whalem, the Ninth Circuit later looked whether a petitioner had described "circumstances consistent with [the] petition and declaration under which he would be entitled to equitable tolling." Mendoza v. Carey, 449 F.3d 1065, 1071 (9th Cir. 2008) (quoting Whalem, 233 F.3d at 1148). In Mendoza v. Carey, petitioner provided facts that he had visited the prison library "several times," "engaged in conversations with people on the prison yard," and submitted 47 separate declarations signed by Spanish-speaking inmates attesting that the library held no Spanish books that could assist them in pursuing federal habeas claims. Mendoza, 449 F.3d at 1067-68. In other words, a petitioner must assert at least some facts under which he would be entitled to equitable tolling.
A Third Circuit case is not binding on this Court but nevertheless the Court considers Pabon to discuss why it is distinguished by its underlying facts from the case at hand.
As stated above, in the instant case, Petitioner has not alleged facts that reflect that he has been pursuing his claims diligently and extraordinary circumstances stood in his way from timely filing. Moreover, the Ninth Circuit has held the 'existence of a translator who can read and write English and who assists a petitioner during appellate proceedings' renders equitable tolling inapplicable for that petitioner." Mendoza, 449 F.3d at 1068 (quoting Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002)). Petitioner fails to provide an accounting of his efforts, if any, to locate Spanish language legal materials or assistance. Cf. Mendoza, 449 F.3d at 1067-68. Petitioner simply has failed to allege any supporting facts, he has failed to show that there are "circumstances consistent with [his] petition and declaration under which he would be entitled to equitable tolling." See Mendoza, 449 F.3d at 1071 (quoting Whalem, 233 F.3d at 1148).
As such, Petitioner does not provide sufficient facts that he has been diligently pursuing his rights and extraordinary circumstances stood in his way from timely filing. Therefore, there is no basis for finding that Petitioner is entitled to equitable tolling or an evidentiary hearing.
IV. FAILURE TO PROSECUTE AND OBEY COURT ORDERS
Finally, Petitioner has not responded to the Court's Second Order to Show Cause, which was issued on January 29, 2019. In the Second Order to Show Cause, Petitioner was expressly ordered to file an Opposition to the Motion to Dismiss. [Dkt. No. 22, p. 3]. The Opposition was due by February 19, 2019. [Id.]. Petitioner was cautioned that failure to comply with the Second Order to Show Cause would result in the Court's recommendation that the Petition be dismissed with prejudice because it is time-barred under 28 U.S.C. § 2244(d)(1) and for failure to prosecute and obey court orders under Federal Rule of Civil Procedure 41(b). [Id.]. Prior to filing the Objections on March 20, 2019, Petitioner had neither filed an Opposition to the Motion to Dismiss nor otherwise communicated with the Court in response to the Second Order to Show Cause.
In Carey v. King, 856 F.2d 1439 (9th Cir. 1988), the Ninth Circuit cited the following factors as relevant to the Court's determination whether to dismiss an action for failure to prosecute: "(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." Id. at 1440.
Here, the first, second, and fifth Carey factors militate in favor of dismissal. The Court's interest in achieving an expeditious resolution of this matter and its need to manage its docket both favor a dismissal. As a result of Petitioner's failure to file an Opposition to the Motion to Dismiss, this action essentially has been and will continue to be stalemated. Therefore, this Court recommends that the Petition be dismissed.
V. RECOMMENDATION
Petitioner's claims are untimely. For the foregoing reasons, it is recommended that the District Judge issue an Order, as follows: (1) approving and accepting this Final Report and Recommendation; (2) granting Respondent's Motion to Dismiss the Petition; (3) directing that Judgment be entered dismissing this action with prejudice; and (4) denying a certificate of appealability.
VI. CERTIFICATE OF APPEALABILITY
The Court finds that Petitioner has not shown that "jurists of reason would find it debatable whether:" (1) "the petition states a valid claim of the denial of a constitutional right;" and (2) "the district court was correct in its procedural ruling." See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thus, it is recommended that a certificate of appealability be denied. Dated: March 27, 2019
/s/ Autumn D. Spaeth
HONORABLE AUTUMN D. SPAETH
United States Magistrate Judge