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Mitchell v. Berry

United States District Court, S.D. Georgia, Statesboro Division

July 24, 2018

WILLIAM GEORGE MITCHELL, Petitioner,
v.
WARDEN WALTER BERRY, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER UNITED STATES MAGISTRATE JUDGE.

         Petitioner William Mitchell (“Mitchell”), who is currently incarcerated at Autry State Prison in Pelham, Georgia, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his conviction and sentence obtained in the Emanuel County, Georgia, Superior Court. (Docs. 1, 7.) Respondent filed an Answer-Response and a Motion to Dismiss. (Docs. 14, 15.) Mitchell failed to file a Response to the Motion to Dismiss, despite the Court directing him to file a Response within fourteen (14) days of the Court's May 17, 2018, Order. (Doc. 17.) For the reasons which follow, I RECOMMEND the Court DISMISS without prejudice Mitchell's Section 2254 Petition based on his failure to respond to a Court Order. In the alternative, I RECOMMEND the Court GRANT Respondent's Motion, DISMISS Mitchell's Petition, DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal, and DENY Mitchell in forma pauperis status on appeal and a Certificate of Appealability.

         BACKGROUND

         Mitchell pleaded guilty to two counts of theft by receiving stolen property in the Emanuel County Superior Court on April 6, 2011. (Doc. 16-2.) Mitchell received concurrent “split” sentences of ten years' imprisonment with two years to serve. (Id.) On December 1, 2014, Mitchell filed a state habeas application with the Dooly County Superior Court, (doc. 16-3), and after three evidentiary hearings, that court denied Mitchell's requested relief on December 20, 2015, (doc. 16-5). Mitchell filed an application for a certificate of probable cause to appeal, which the Georgia Supreme Court dismissed on December 8, 2016. (Doc. 16-6.) Mitchell executed his Section 2254 Petition on September 5, 2017, and it was filed in this Court on September 13, 2017. (Doc. 1.)

         Respondent filed an Answer-Response and a Motion to Dismiss on May 16, 2018. (Docs. 14, 15.) The next day, the Court advised Mitchell that Respondent had filed a Motion to Dismiss and directed Mitchell to respond to that Motion within fourteen (14) days. (Doc. 17.) The Court also advised Mitchell that, should he fail to respond within fourteen (14) days, “the Court will determine that there is no opposition to the motion and will grant the motion as unopposed and for failure to follow this Court's Order.” (Id.) Mitchell did not respond to the Motion to Dismiss. Instead, he filed a Notice of Interlocutory Appeal as to the Court's Order directing his response to the Motion to Dismiss. (Doc. 19.) The Court of Appeals for the Eleventh Circuit dismissed Mitchell's appeal for lack of jurisdiction. (Doc. 22.)

         DISCUSSION

         In his Petition, Mitchell states that certain stolen items he was said to have been in receipt of were not made part of his plea agreement and were added for restitution purposes after he entered into his plea agreement. (Doc. 1, p. 5.) Mitchell also states some of the items contended to be stolen did not match the descriptions given for those items. (Id. at pp. 6-7.) Additionally, Mitchell asserts he was charged for more than one offense, even though there was one act and one crime. (Id. at p. 8.) Mitchell alleges his attorney gave him false information regarding his case and the sentence he was to serve. (Id. at pp. 9-10.)

         Respondent contends Mitchell untimely filed his Section 2254 Petition because he did not file it within one year of his Emanuel County conviction being “final.” (Doc. 15-1, pp. 1-2.) Respondent also argues that Mitchell is not entitled to equitable tolling of the applicable statute of limitations period. (Id.) Despite being advised of the Motion to Dismiss and his obligation to respond, Mitchell has not filed any response to Respondent's Motion. The Court now addresses Mitchell's failure to respond to a Court Order and Respondent's contentions.

         I. Dismissal for Failure to Follow a Court Order

         A district court may dismiss claims sua sponte pursuant to either Federal Rule of Civil Procedure 41(b) (“Rule 41(b)”) or the court's inherent authority to manage its docket. Link v. Wabash R.R. Co., 370 U.S. 626 (1962);[1] Coleman v. St. Lucie Cty. Jail, 433 Fed.Appx. 716, 718 (11th Cir. 2011) (per curiam) (citing Fed.R.Civ.P. 41(b); Betty K Agencies, Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005)). In particular, Rule 41(b) allows for the involuntary dismissal of a petitioner's claims where he has failed to prosecute those claims, comply with the Federal Rules of Civil Procedure or local rules, or follow a court order. Fed.R.Civ.P. 41(b); see also Coleman, 433 Fed.Appx. at 718; Sanders v. Barrett, No. 05-12660, 2005 WL 2640979, at *1 (11th Cir. Oct. 17, 2005) (citing Kilgo v. Ricks, 983 F.2d 189, 192 (11th Cir. 1993)); cf. Local R. 41.1(b) (“[T]he assigned Judge may, after notice to counsel of record, sua sponte . . . dismiss any action for want of prosecution, with or without prejudice[, ] . . . [based on] willful disobedience or neglect of any order of the Court.” (emphasis omitted)). Additionally, a district court's “power to dismiss is an inherent aspect of its authority to enforce its orders and ensure prompt disposition of lawsuits.” Brown v. Tallahassee Police Dep't, 205 Fed.Appx. 802, 802 (11th Cir. 2006) (per curiam) (quoting Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983)).

         It is true that dismissal with prejudice for failure to follow a court order is a “sanction . . . to be utilized only in extreme situations” and requires that a court “(1) conclud[e] a clear record of delay or willful contempt exists; and (2) mak[e] an implicit or explicit finding that lesser sanctions would not suffice.” Thomas v. Montgomery Cty. Bd. of Educ., 170 Fed.Appx. 623, 625-26 (11th Cir. 2006) (per curiam) (quoting Morewitz v. West of Eng. Ship Owners Mut. Prot. & Indem. Ass'n (Lux.), 62 F.3d 1356, 1366 (11th Cir. 1995)); see also Taylor v. Spaziano, 251 Fed.Appx. 616, 619 (11th Cir. 2007) (per curiam) (citing Morewitz, 62 F.3d at 1366). By contrast, dismissal without prejudice for failure to prosecute is not an adjudication on the merits, and therefore, courts are afforded greater discretion in dismissing claims in this manner. Taylor, 251 Fed.Appx. at 619; see also Coleman, 433 Fed.Appx. at 719; Brown, 205 Fed.Appx. at 802-03.

         While the Court exercises its discretion to dismiss cases with caution, dismissal of this action without prejudice is warranted. See Coleman, 433 Fed.Appx. at 719 (upholding dismissal without prejudice for failure to prosecute Section 1983 complaint, where plaintiff did not respond to court order to supply defendant's current address for purpose of service); Taylor, 251 Fed.Appx. at 620-21 (upholding dismissal without prejudice for failure to prosecute because plaintiffs insisted on going forward with deficient amended complaint rather than complying, or seeking an extension of time to comply, with court's order to file second amended complaint); Brown, 205 Fed.Appx. at 802-03 (upholding dismissal without prejudice for failure to prosecute Section 1983 claims, where plaintiff failed to follow court order to file amended complaint and court had informed plaintiff that noncompliance could lead to dismissal). With Mitchell having failed to file a response to this Court's Order or Respondent's Motion to Dismiss, the Court is unable to move forward with this case. Moreover, Mitchell was given ample time to follow the Court's directives, and Mitchell has not made any effort to do so or to inform the Court as to why he cannot comply with its directives.

         Thus, I RECOMMEND the Court DISMISS without prejudice Mitchell's Petition, (docs. 1, 7), for failure to follow this Court's Order and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal.

         II. Whether Mitchell Timely ...


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