Opinion
Joby Fraire, Petitioner, Pro se, Chino, CA.
DALE S. FISCHER, UNITED STATES DISTRICT JUDGE. Jean Rosenbluth, United States Magistrate Judge.
ORDER DISMISSING PETITION AND ADMINISTRATIVELY CLOSING CASE
DALE S. FISCHER, UNITED STATES DISTRICT JUDGE.
On March 23, 2015, Petitioner filed a " Motion for Modification of Sentence" /Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254. He challenges only the state trial court's restitution order and relies exclusively on state law.
On March 26, 2015, because it appeared that Petitioner's restitution claim was not cognizable on federal habeas review, the Magistrate Judge ordered him to show cause why the Petition should not be dismissed. She warned him that if he did not do so by April 27, 2015, his Petition would be subject to dismissal for failure to prosecute as well as noncognizability. To date, Petitioner has not responded to the OSC.
Courts may dismiss lawsuits that are not diligently prosecuted. Link v. Wabash R.R., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (per curiam). In determining whether to dismiss a pro se petitioner's petition for failure to prosecute, a court must consider (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. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). Unreasonable delay creates a rebuttable presumption of prejudice to the opposing party that can be overcome only with an affirmative showing of just cause by the petitioner. In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994).
Here, the first, second, third, and fifth factors militate in favor of dismissal. The Court cannot simply leave hanging on its docket a case that does not raise a viable claim. See also R. 4, Rs. Governing § 2254 Cases in U.S. Dist. Cts. (" If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition . . . ."). Further, Petitioner has not rebutted the presumption of prejudice to Respondent caused by his unreasonable delay in prosecuting this action. Finally, no less drastic sanction is available, as by his failure to respond Petitioner appears to concede that his claim is not cognizable in this Court. Although the fourth factor weighs against dismissal -- as it does in every case -- the other factors together outweigh the public's interest in disposing of the case on its merits.
Accordingly, this action is dismissed for the reasons stated in the Magistrate Judge's March 26, 2015 OSC and under the Court's inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute.
LET JUDGMENT BE ENTERED ACCORDINGLY.
JUDGMENT
Pursuant to the Order Dismissing Petition and Administratively Closing Case, IT IS HEREBY ADJUDGED that this action is dismissed.