Davis v. Miller

FILED
United States Court of Appeals
Tenth Circuit

July 7, 2009
Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALVIN LESLIE DAVIS, JR.,

Petitioner-Appellant,

v.
No. 07-7062
DAVID C. MILLER, Warden of the
Lawton Correctional Facility,

Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 06-CV-525-FHS-KEW)

Submitted on the Briefs:

Steven M. Presson of Presson Law Office, Norman, Oklahoma, for Petitioner-
Appellant.

W.A. Drew Edmondson, Attorney General, and Keeley L. Harris, Assistant
Attorney General, State of Oklahoma, Oklahoma City, Oklahoma, for
Respondent-Appellee.

Before TACHA, HOLLOWAY, and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.
 Alvin Leslie Davis, Jr., appeals the district court’s sua sponte dismissal of

his 28 U.S.C. § 2254 petition for habeas corpus relief. We granted a certificate of

appealability to decide whether the court abused its discretion in dismissing his

petition under Federal Rules Civil Procedure 41(b) for failure to comply with the

court’s orders. We reverse and remand.

I.

Mr. Davis was tried and sentenced in the district court of McIntosh County,

Oklahoma. His first trial ended in a hung jury; at the second trial, he was found

guilty of first degree murder and sentenced to life without the possibility of

parole. Mr. Davis’s direct appeal to the Oklahoma Court of Criminal Appeals

was denied, and his conviction became final on December 5, 2005. On

December 4, 2006, Mr. Davis filed a timely § 2254 petition in federal district

court through counsel, raising nine constitutional claims. This fifty-five page

document was styled as a “preliminary petition,” indicating that counsel filed it to

meet the one-year statute of limitations under § 2254(d)(1)(A) and that he planned

to amend the petition. A copy of this petition was served on respondent.

Upon receiving Mr. Davis’s “preliminary” petition, the district court

ordered him to file an amended petition by December 26, 2006. The court

subsequently granted his motion for an enlargement of time and extended the

deadline to February 22, 2007. Mr. Davis failed to file an amended petition by

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that date, and on March 1 the magistrate judge entered an order directing him to

show cause by March 21 for this failure. Again, Mr. Davis did not respond to the

court’s orders. The district court entered a second show cause order on May 31,

setting a new deadline of June 11 and warning that dismissal could result if Mr.

Davis failed to comply with the show cause order.

On June 11, 2007, counsel for Mr. Davis responded to the second show

cause order, explaining that he had failed to file an amended petition because he

had experienced numerous computer problems and had undergone a family crisis. 1

He requested a further extension of the filing deadline, or, alternately, that the

court “instead consider each of the claims contained in the preliminary petition on

the merits.” Aplt. App. at 20. The court granted the extension and ordered Mr.

Davis to file an amended petition by July 10. Counsel for Mr. Davis again missed

the deadline. On July 16, the district court dismissed Mr. Davis’s petition sua

sponte under Rule 41(b) due to his failure to comply with court orders.

Respondent never made an appearance in the case.

II.

A district court may dismiss an action sua sponte “[i]f the plaintiff fails to

1
Counsel’s mother became very ill during the relevant period and he
asserted that he was consumed by caring for her. Counsel provided numerous
other explanations for the missed deadlines, most of which related to his being
away from the office while attending to his mother.

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prosecute or to comply with these [procedural] rules or a court order.” Fed. R.

Civ. P. 41(b); Olsen v. Mapes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003).

Dismissals pursuant to Rule 41(b) may be made with or without prejudice.

Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161-62 (10th Cir.

2007). The district court did not specify whether it intended to dismiss Mr.

Davis’s case with or without prejudice, so we “rely on background principles

under Rule 41(b),” which instruct us to treat the dismissal as carrying prejudice

unless the dismissal order states otherwise. Id. at 1162; see also Fed. R. Civ. P.

41(b). Consequently, we treat the district court’s order as a dismissal with

prejudice, 2 and we review it for abuse of discretion. Nasious, 492 F.3d at 1161.

We have long held that dismissal of an action with prejudice is a drastic

sanction that should be employed only as a last resort. In Meade v. Grubbs, 841

F.2d 1512, 1520 n.6 (10th Cir. 1988), we said, “Dismissal of an action with

prejudice is a severe sanction, applicable only in extreme circumstances. Because

dismissal with prejudice defeats altogether a litigant’s right to access to the

courts, it should be used as a weapon of last, rather than first, resort.” (internal

quotations and citations omitted). With that general rule in mind, we

subsequently set forth five factors the district court should consider before

2
For all practical purposes, a dismissal without prejudice in these
circumstances would likely be tantamount to a dismissal with prejudice because
the one-year statute of limitations bars Mr. Davis from refiling his petition. See
Justice v. United States, 6 F.3d 1474, 1482 n.15 (11th Cir. 1993).

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imposing the ultimate sanction of dismissal:

(1) the degree of actual prejudice to the defendant; (2) the amount of
interference with the judicial process; (3) the culpability of the
litigant; (4) whether the court warned the party in advance that
dismissal of the action would be a likely sanction for noncompliance;
and (5) the efficacy of lesser sanctions.

Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (internal citations and

quotation marks omitted). It is “[o]nly when the aggravating factors outweigh the

judicial system’s strong predisposition to resolve cases on their merits [that]

dismissal [is] an appropriate sanction.” Id. Importantly, we have noted, “The

intent is to impose the sanction where the fault lies . . . . If the fault lies with the

attorneys, that is where the impact of sanction should be lodged. If the fault lies

with the clients, that is where the impact of the sanction should be lodged.” In re

Baker, 744 F.2d 1438, 1440, 1442 (10th Cir. 1984) (en banc). Significantly, we

made clear in Ocelot Oil Corporation v. Sparrow Industries, 847 F.2d 1458 (10th

Cir. 1988), that the purpose of the first three factors is to help the court determine

whether the lawyer or the client is at fault and, accordingly, where “the impact of

the sanction [should] be lodged.” Id. at 1465.

The district court concluded here that the Ehrenhaus factors weighed in

favor of dismissal. First, the court found “significant” prejudice to the respondent

because “[p]etitioner has failed to file an amended petition for habeas relief

listing all claims,” and because “[t]he court found his original petition was

lacking.” Aplt. App. at 5-6. Without the final version of the petition, the court

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concluded, it was difficult for the respondent to know what the claims were

against him.

It is not clear to us why the district court found the preliminary petition

“lacking.” Aplt. App. at 6. Apart from counsel’s disclaimers and notice of intent

to file an amended petition, 3 the petition appears complete. It begins by noting

3
Petitioner included a lengthy fact section, but opened with a disclaimer:

Because of the very short time frame undersigned counsel has had to
work with this case, and because of its two trials and extremely
lengthy record, counsel does not yet possess a comfortable working
knowledge of the facts of the case and trials. In order to meet the
filing deadline, however, counsel has on information and belief
formed an opinion that the claims pursued in state court were validly
based on the available records and can be supported and better
briefed in the near future after a better working knowledge of the
record is obtained.

Aplt. App. at 23. Similarly, petitioner began the “Propositions of Error” section
by stating:

The following propositions of error are taken from the state direct
appeal brief filed on Davis’s behalf and which claims are properly
exhausted for federal review. Counsel anticipates that the claims
will be supplemented with better briefing after the lengthy two-trial
record in this case has been thoroughly reviewed and legal research
has been completed. In situations such as this, where a preliminary
filing is made on an emergency basis to preserve claims for federal
review in light of the Section 2244(d) deadline, it is normally the
case than an amended petition abandons some claims and
concentrates on those that present the most viable claims for federal
habeas relief.

Id. at 30.

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that it was filed to satisfy 28 U.S.C. § 2244(d)’s deadline, and that “[l]eave to file

an amended petition, abandoning some claims and more fully briefing claims not

abandoned, will be sought shortly as pertinent rules allow.” Id. at 21. It further

explains that it contains all the information required under the relevant rules. Id.

at 21-22. Thus, the district court’s characterization of the petition as lacking is

somewhat overstated: petitioner did not indicate that he planned to add any

claims, and leave to file an amended petition was sought at Mr. Davis’s own

request, rather than in response to an asserted deficiency in the petition.

Furthermore, although respondent was served with the original petition, he

never entered an appearance in this case. Because the district court entered an

order requiring Mr. Davis to file an amended petition the day after respondent

was served with the original petition, there is no chance respondent was

prejudiced by exerting effort to reply to the initial petition. This case does not

present the usual problems of delay where responsive pleadings, motions for

discovery, status conferences, or trial preparations were underway when the

action was dismissed under Rule 41(b). Cf. Rogers v. Andrus Transp. Servs., 502

F.3d 1147, 1152 (10th Cir. 2007) (defendant prejudiced by plaintiff’s failure to

prosecute her case where defendant had already conducted trial preparations); In

re Baker, 1438 F.2d at 1440 (plaintiff and third party defendant’s delay in

deposing witness forced court to postpone trial where date was set and jury

planned).

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 With respect to the next factor, the district court found that there had been

“extreme” interference with the judicial process because the court was forestalled

from taking any action on the case until Mr. Davis filed his amended petition.

Aplt. App. at 6. The court was clearly correct, and we reject Mr. Davis’s

argument to the contrary. Although certainly other types of delays may cause an

even greater interference with the judicial process than that which occurred here,

the untimeliness and failure to respond to court orders cannot be ignored. This

factor impacts the court’s ability to manage its docket and move forward with the

cases before it, and it cannot do this if a party fails to respond to court orders.

In assessing the culpability of the litigant, the district court observed that

“it is difficult to determine what role the actual petitioner has played in the

delays.” Id. To the contrary, however, the record does not support the conclusion

that Mr. Davis had any role in the delays. In both the response to the show cause

order and in the briefing before this court, Mr. Davis’s counsel very clearly stated

that the fault was solely his own and that his client played no role in the delays.

While we do not excuse a party’s failure to comply with court orders simply

because responsibility lies with his counsel, see Gripe v. City of Enid, 312 F.3d

1184, 1189 (10th Cir. 2002) (“Those who act through agents are customarily

bound by their agents’ mistakes.”), we have repeatedly emphasized the

importance of directing sanctions at counsel when the fault lies with him rather

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than with his client. See In re Baker, 744 F.2d at 1442. 4 In applying this

standard, “[w]e have upheld dismissals and defaults where the parties themselves

neglected their cases or refused to obey court orders, or where counsel engaged in

deliberately dilatory tactics or other trial strategy intended to inure to the benefit

of the client.” Ocelot Oil Corp., 847 F.2d at 1464 (internal citations omitted).

On the other hand, “[w]e have reversed dismissals and defaults . . . where

inadvertence or simple neglect were the basis of the court’s decision.” Id. at

1464-65.

There is no indication that Mr. Davis’s case falls into the former category –

Mr. Davis was not responsible for his counsel’s missed deadlines, and certainly

counsel’s actions were not strategically planned to benefit Mr. Davis, who is

incarcerated for life without parole. Cf. Ehrenhaus, 965 F.2d at 921 (party

intentionally failed to appear for deposition). We recognize that counsel’s actions

probably constitute more than inadvertence or simple neglect. While we are not

4
See also Bud Brooks Trucking, Inc. v. Bill Hodges Trucking Co., 909
F.2d 1437, 1439 (10th Cir. 1990) (“Dismissal with prejudice is a drastic sanction.
While such a sanction may be employed in the proper situation, we have held that
the district court should consider sanctioning the responsible party.” (internal
citations omitted)); Seismic Intern. Research Corp. v. South Ranch Oil Co., 793
F.2d 227, 230 (10th Cir. 1986) (“[A] court should, when possible, enter sanctions
against counsel, and not the parties they represent.”); D.G. Shelter Products Co.
v. Forest Products Co., 769 F.2d 644, 645 (10th Cir. 1985) (“While the severe
sanction of dismissal is an available remedy for failure of counsel, we have
indicated that the court should explicitly weigh whether sanctions against the
offending attorney will not serve the court’s legitimate purposes in imposing
sanctions.”).

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wholly unsympathetic to the events that contributed to counsel’s repeated failures

to comply with deadlines in this case, 5 we note that many deadlines were missed

due to garden-variety causes such as computer failures and internet connectivity

problems. Moreover, all of these problems could have been explained to the

district court in advance of the deadlines. On balance, however, because Mr.

Davis himself was not at fault and because the record does not support a

conclusion that counsel’s actions rose to the level of “willful misconduct,” see

id., 965 F.2d at 920, this factor does not support dismissal.

The district court’s second show cause order warned that “[f]ailure to

properly show cause as to why petitioner failed to comply with this court’s [first

show cause] order could result in dismissal of this lawsuit.” Aplt. App. at 2. Mr.

Davis timely responded to this order on June 11. In his filing, he requested an

extension, but then subsequently failed to file the amended petition by the new

deadline. It was after this failure that the district court dismissed the case. Thus,

Mr. Davis and counsel were warned about the possibility of dismissal, albeit not

in connection with counsel’s most recent failure to meet a deadline.

We have held that “constructive notice – that is, notice . . . objectively

5
On the other hand, we are wholly unsympathetic to counsel’s suggestion
that his failure to comply with the court’s orders was, in part, due to “the fact this
was a pro bono case.” Aplt. Br. at 6. As should scarcely need repeating,
counsel’s duty of diligent and prompt representation applies to all clients, without
distinction.

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based upon the totality of the circumstances (most importantly, the trial court’s

actions or words)” is adequate to support dismissal. Rogers, 503 F.3d at 1152

(concluding litigant received constructive notice where district court had earlier

entered show cause order warning that failure to file status report may result in

dismissal); see also Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Co., 497 F.3d

1135, 1150 (10th Cir. 2007) (concluding litigant had constructive notice where

defendants had earlier filed Rule 41(b) motion to dismiss and district court had

warned parties about possibility of sanctions). Under this standard, it is not

necessary that the district court promise to dismiss the case in the event of further

delay, nor is it necessary that the notice be given pursuant to the specific behavior

that later forms the basis of the dismissal. Ecclesiastes 9:10-11-12, Inc., 497 F.3d

at 1150. Because the district court’s warning put Mr. Davis and his counsel at

least on constructive notice, this factor weighs in favor of dismissal.

Finally, we consider the efficacy of lesser sanctions. The district court

concluded that “lesser sanctions would not correct the behavior of Petitioner.”

Aplt. App. at 6. But here the court was presented with an obvious lesser sanction

– withdrawing permission to file an amended petition and evaluating the original

petition on the merits – which would have allowed the case to proceed

immediately with no opportunity for further filing failures by Mr. Davis’s

counsel. Cf. Rogers, 502 F.3d at 1152 (“[N]o appropriate lesser sanction occurs

to us, and [the plaintiff] has never suggested any.”); see also Ecclesiastes 9:10-

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11-12, Inc., 497 F.3d at 1150 (noting plaintiff was unable to identify a sanction

short of dismissal). Given the availability of this alternate sanction and the fact

that it was counsel who was at fault, the district court should have considered

proceeding with Mr. Davis’s original petition before dismissing the case entirely.

See Nasious, 492 F.3d at 1163 (suggesting that a district court should generally

consider “the practicability of alternatives to dismissing . . . with prejudice”);

Ehrenhaus, 965 F.2d at 916 (“It is within a court’s discretion to dismiss a case if,

after considering all the relevant factors, it concludes that dismissal alone would

satisfy the interests of justice.”).

In addition, Mr. Davis’s status as an incarcerated prisoner distinguishes this

case from those involving typical civil litigants with resources at their disposal.

While clients are bound by the actions of their attorneys in civil and criminal

cases alike, under the totality of the circumstances approach this circuit applies,

see In re Baker, 744 F.2d at 1440, the district court should consider the unique

constraints on an incarcerated prisoner as well as the liberty interest at stake when

weighing whether to pursue alternative sanctions. A malpractice suit against his

attorney cannot bring Mr. Davis his freedom.

In sum, the only factors weighing in favor of dismissal are interference

with the judicial process and notice to Mr. Davis that dismissal was possible. We

recognize that district courts have broad discretion to dismiss cases in

circumstances where there is extreme dilatory conduct, but we emphasize that

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“dismissal is usually appropriate only where a lesser sanction would not serve the

interest of justice.” Meade, 841 F.2d at 1520 (internal quotation marks omitted)

(emphasis added). We are convinced that this case falls within the category of

those cases where “the deterrent effect of a default or dismissal is likely to be

substantially achieved through lesser sanctions,” and that dismissal with prejudice

was not warranted. Ocelot Oil Corp., 847 F.2d at 1465. As we explained in In re

Baker, where we affirmed monetary sanctions against counsel for delaying trial

by failing to depose a necessary witness, while the district court could have

remedied the inconvenience to the court by denying the continuance, that

approach “would turn the purpose of sanctions on their head.” 744 F.2d at 1441.

Because “[i]t [was] clear from the record . . . that the interference with sound

management of the court was the fault of the lawyers on whom the sanction was

imposed–not their clients, . . . . the trial court lodged the impact of the sanction

precisely where it should have” – that is, on the lawyers. Id. at 1442. We

concluded, “There are a broad range of sanctions available to the trial court, but

they should be administered and tailored in a manner designed to effectuate the

purpose of the sanction and in order of their seriousness as sound discretion

dictates.” Id. While the district court here was rightly concerned about the

conduct of counsel, it could have imposed sanctions on him and if it did not

consider that sufficient under the circumstances, it could have denied permission

to file an amended petition.

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 For the foregoing reasons, we REVERSE the district court’s dismissal of

Mr. Davis’s § 2254 petition. We REMAND for further proceedings and for the

court to decide (1) whether to sanction counsel and (2) whether to grant Mr.

Davis additional time to file an amended petition or to accept his original petition

for review on the merits.

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07-7062, Davis v. Miller

TACHA, J., concurring.

I concur in the result. I agree that we must reverse the district court’s order

of dismissal. I write separately to emphasize that litigants are generally bound by

the mistakes of their attorneys and that district courts maintain wide discretion to

dismiss cases accordingly. I also cannot agree with the majority’s view that the

respondent suffered no prejudice and that the district court did not consider the

propriety of proceeding with Mr. Davis’s original petition. Nevertheless, this is a

most unusual case in which counsel for Mr. Davis essentially admitted

professional misconduct to the district court. Thus, while this case would

normally be dismissible, I would hold that because the court was on notice that

counsel failed his duty of competent and diligent representation to a pro bono

client, the court should not have aimed the sanction toward the client but should

have fashioned an alternative remedy.