Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable David O. Carter, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
On August 5, 2015, Petitioner, a state prisoner proceeding pro se, filed a document titled "Notice of Appeal Notice of Designating Papers and Record Desire to be incorporated in the Record of Appeal Request for Appointing Attorney [sic]." This document did not set forth any grounds for, or request for, habeas corpus relief. Hence, the document did not constitute a habeas corpus petition. See Rule 2(c), Rules Governing Section 2254 Cases in the United States District Courts.
To the extent the document filed on August 5, 2015 sought the appointment of counsel, the Magistrate Judge denied such relief without prejudice, by Order filed August 11, 2015. The August 11, 2015 Order also provided:
If Petitioner desires to pursue habeas corpus relief in this action, he may file a petition for writ of habeas corpus within thirty (30) days of the date of this Order. Any such petition shall bear the case number set forth above and shall conform to the requirements of Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts. If Petitioner desires, Petitioner may use the form petition attached to this Order. Failure to file a petition within thirty (30) days of the date of this Order may result in the dismissal of this action for failure to prosecute.
Petitioner failed to file any petition for writ of habeas corpus within the allotted time.
On September 17, 2015, the Magistrate Judge filed a report recommending that this action be dismissed without prejudice. On September 24, 2015, Petitioner filed a letter again requesting the appointment of counsel. On the same day, the Magistrate Judge denied the request, withdrew the September 17, 2015 recommendation and sua sponte extended for thirty (30) additional days the time within which Petitioner could file a petition for writ of habeas corpus. Nevertheless, Petitioner again failed to file any petition for writ of habeas corpus within the allotted time.
This action should be dismissed without prejudice. A non-capital prisoner such as Petitioner cannot initiate a habeas proceeding by filing a request for appointment of counsel. Calderon v. United States District Court for the Northern District of California (Nicolaus), 98 F.3d 1102, 1107 n.3 (9th Cir. 1996), cert. denied, 520 U.S. 1233 (1997). A non-capital prisoner must file a petition for writ of habeas corpus in order to initiate a habeas proceeding. Id.
See People v. Johnson, 2015 WL 1524544 (Cal.App. April 2, 2015) (reflecting that Petitioner is serving a sentence of 191 years and 4 months in state prison).
The Magistrate Judge allowed Petitioner the opportunity to file a habeas petition under the existing case number, but Petitioner failed to do so within the allotted time, even after a sua sponte extension of that time. The Court has inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute. Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962). The Court has considered the factors recited in Ferdik v. Bonzelet, 963 F.2d 1258, 1260-62 (9th Cir.), cert. denied, 506 U.S. 915 (1992), and has concluded this dismissal without prejudice is appropriate. In particular, any less drastic alternative would not be effective under the circumstances of this case.
For all of the foregoing reasons, it is recommended that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered dismissing the action without prejudice.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.