                                                                            FILED
                            NOT FOR PUBLICATION                             MAY 18 2015

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


RICKY MOORE,                                      No. 12-56766

              Petitioner - Appellant,             D.C. No. 2:10-CV-06739-DSF-
                                                  JCG
  v.

J. SOTO,                                          MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                        Argued and Submitted April 6, 2015
                               Pasadena, California

Before: D.W. NELSON, TASHIMA, and CLIFTON, Circuit Judges.

       Ricky Moore, a California state prisoner, appeals the district court’s

dismissal of his habeas petition. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we reverse and remand.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court summarily adopted the magistrate judge’s report and

recommendation which proposed dismissing Moore’s petition as untimely. The

report and recommendation stated in a footnote that “Pursuant to Local Rule 7-12,

the Court also deems Petitioner’s failure to file opposition papers [to the motion to

dismiss] as consent to the granting of the Motion [to Dismiss].” While it is within

a district court’s discretion to grant a motion to dismiss for failure of a pro se

litigant to oppose the motion, doing so is not required. See Ghazali v. Moran, 46

F.3d 52, 53–54 (9th Cir. 1995) (per curiam).

      Moreover, before dismissing a petition on such grounds, the district court

must weigh “(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 53 (quoting Henderson v. Duncan, 779

F.2d 1421, 1423 (9th Cir. 1986) (internal quotation marks omitted)). When a

district court does not conduct this analysis explicitly, “we review the record

independently to determine whether the district court abused its discretion.” Id. at

54.

      Here, the public may indeed have an interest in the expeditious resolution of

this litigation. Admittedly, Moore filed his petition thirteen years late. However,


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we must weigh the need for timely resolution of claims against the other factors.

There is nothing in the record regarding the district court’s need to manage its

docket. In addition, the warden had notice of Moore’s actual innocence claim

when he brought his state habeas petition before the California Supreme Court and

therefore would not be prejudiced by the continuation of this matter. Furthermore,

the public policy favoring dispositions of cases on their merits appears particularly

strong in a case such as this where the petitioner alleges actual innocence. Finally,

with respect to the availability of less drastic sanctions, “[t]he district court abuses

its discretion if it imposes a sanction of dismissal without first considering the

impact of the sanction and the adequacy of less drastic sanctions.” In re

Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1228 (9th Cir.

2006) (internal quotation marks and citation omitted).

      Neither the warden’s motion to dismiss nor the district court’s order

dismissing the petition addressed Moore’s claim of actual innocence. Under

McQuiggin v. Perkins, a prisoner who makes a credible showing of actual

innocence may “pursue his constitutional claims . . . on the merits notwithstanding

the existence of a procedural bar to relief,” such as AEDPA’s statute of limitations.

Moore has not had the opportunity to make such a showing because he has not had

access to the state court record. Thus, it was error for the district court to ignore


                                            3
Moore’s Perkins claim. 133 S. Ct. 1924, 1931 (2003). We therefore reverse the

district court’s order dismissing Moore’s petition and remand for lodging of the

state court record, further briefing and consideration of whether Moore has made a

credible showing of actual innocence pursuant to Perkins.

      We note that the warden’s November 13, 2013, response to this Court’s

Order to Show Cause appears to have quoted selectively from the state court

record. The warden has, however, not provided Moore with a copy of the

complete record or included those materials among the documents lodged with the

district court. On remand, the district court should order the warden to lodge the

complete state court record and to provide a copy to Moore. See Rule 5(c), Rules

Governing § 2254 Cases in the U.S. District Courts. The dissent suggests that any

development of the record would conflict with Cullen v. Pinholster, 131 S. Ct.

1388 (2011). Such concerns are premature. All Moore seeks at this point is to put

the state court record before the district court, which Pinholster plainly allows. See

id. at 1398. If Moore seeks to expand the record further, the district court can, at

that time, address the applicability of Pinholster under the circumstances then

presented.

      REVERSED and REMANDED for further proceedings.




                                           4
                                                                             FILED
No. 12-56766, Moore v. Soto                                                   MAY 18 2015

                                                                          MOLLY C. DWYER, CLERK
CLIFTON, Circuit Judge, dissenting:                                        U.S. COURT OF APPEALS



      I respectfully dissent. In my view, the dismissal of Moore’s habeas petition

should be affirmed for two independently sufficient reasons.

      First, the district court properly relied on Moore’s failure to oppose the

State’s motion to dismiss as an alternative basis for dismissing the petition. The

Central District of California Local Rules require that opposing papers be filed in

response to a motion to dismiss and provide that failure to do so may be deemed

consent to the granting of the motion. Our case law establishes that “pro se

litigants are bound by the rules of procedure,” and that “[f]ailure to follow a district

court’s local rules is a proper ground for dismissal.” Ghazali v. Moran, 46 F.3d

52, 53, 54 (9th Cir. 1995) (per curiam). Based on its independent review of the

record, the majority concludes that the district court abused its discretion when it

dismissed the petition. I respectfully disagree with that conclusion. “Only in rare

cases will we question the exercise of discretion in connection with the application
of local rules. This is not one of those infrequent cases.” United States v. Warren,

601 F.2d 471, 474 (9th Cir. 1979) (per curiam).1

       Second, I believe the majority’s decision to remand this case to the district

court to “develop[ ] . . . the record” runs afoul of Cullen v. Pinholster, 131 S. Ct.

1388 (2011). Pinholster teaches that a federal court’s “review under § 2254(d)(1)

is limited to the record that was before the state court.” Id. at 1398. The actual

innocence claim was raised in Moore’s state habeas petition. Moore could have

sought to develop the record by filing a petition in the state trial court first, but

instead he went straight to the California Supreme Court pursuant to that court’s

“original writ” system. See CAL. CONST. art. VI, § 10 (“The Supreme Court, courts

of appeal, superior courts, and their judges have original jurisdiction in habeas

corpus proceedings.”); see also BRIAN R. MEANS, POSTCONVICTION REMEDIES

§ 2:5 (2014 ed.) (“[T]he superior courts, of course, are better suited to fact-finding,

and the appellate courts may decline to exercise their original jurisdiction over the




       1
        The majority suggests, at 3, that it was error for the district court to ignore
Moore’s claim under McQuiggin v. Perkins, 133 S. Ct. 1924 (2013), because “a
prisoner who makes a credible showing of actual innocence may ‘pursue his
constitutional claims . . . on the merits notwithstanding the existence of a
procedural bar to relief.’” What that requires is a “credible showing,” however.
Perkins, 133 S. Ct. at 1931. Moore has made no “showing” of any kind, let alone a
credible one. A claim of innocence supported by no evidence at all is not enough.

                                            2
[habeas] petition.”) (footnote omitted). Having failed to develop the factual record

in state court, Moore cannot now do so in the first instance in federal court.

      I would affirm the dismissal of the petition.




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