Petitioner Not Responsible for Counsel's Delays; Petition Should Not Have Been Dismissed

Davis v. Miller, ___F.3d ___, 2009 WL 1926915 (10th Cir. 2009)
District court abused its discretion in dismissing with prejudice the Sec. 2254 habeas corpus petition under Rule 41 for failure to comply with court orders: Petitioner’s attorney asked for numerous extensions of time to amend the petition and missed them all. Under balancing test: (1) respondent, who never entered an appearance, was not prejudiced. The preliminary habeas corpus petition was complete and apprised respondent of all claims; (2) while the judicial process was delayed and interfered with, the fault lay with counsel, not petitioner, and sanctions should be directed against counsel. Counsel had family and office problems, and none of the delays were directed by Petitioner or were strategic; (3) counsel had notice that dismissal was possible; (4) lesser sanctions would be appropriate: an incarcerated litigant stands in a different position than a civil litigant with resources at his disposal and Petitioner should not be so bound by his counsel’s actions. A malpractice suit could not bring Petitioner freedom. The balance of factors show that dismissal with prejudice was too harsh a sanction. Reversal.