United States District Court, N.D. California
November 14, 2005.
VINH H. NGUYEN, Petitioner,
ANTHONY KANE, Warden, Respondent.
The opinion of the court was delivered by: CHARLES BREYER, District Judge
MEMORANDUM AND ORDER
Petitioner Vinh H. Nguyen brings this motion to reopen
proceedings and reinstate a petition for writ of habeas corpus
pursuant to Federal Rule of Civil Procedure 60(b)(6). On December
7, 2000, petitioner filed a habeas petition in federal court.
Petitioner's Mot. Exh. B at 1-10. On June 11, 2001, this Court
dismissed the petition without prejudice. Mot. Exh. B at 155.
Petitioner then filed the instant motion, which moves this Court
to reopen the proceedings and reinstate the petition for writ of
habeas corpus on the grounds that extraordinary circumstances
justify this equitable relief.
On November 1, 1996, Petitioner Vinh H. Nguyen was convicted of
first-degree murder in the State of California, Santa Clara
Superior Court. The Sixth District Court of Appeal affirmed the
judgment in a decision filed on August 19, 1999. On October 27,
1999, the California Supreme Court summarily denied petition for
review. Mot. Exh. B at 151. Petitioner filed for federal habeas review on December 7,
2000.*fn1 The petition raised three claims. On April 24,
2001, respondent moved to dismiss on the grounds that petitioner
had failed to exhaust state remedies for the first claim. Mot.
Exh. B at 15-17. On May 3, 2001, this Court ordered petitioner to
respond to the motion to dismiss within thirty days. Mot. Exh. B
at 153-54. In its order, the Court informed petitioner that
failure to respond to the order would result in dismissal of the
entire petition without prejudice. Petitioner not having
responded to the Court's May 3 order, the Court dismissed the
petition without prejudice on June 11, 2001. Mot. Exh. B at 155.
Petitioner claims that on receiving this Court's May 3 order to
respond to the motion to dismiss, petitioner discovered that
about 80 percent of his legal papers had been lost by the
California Department of Corrections. Mot. Exh. B at 74-78.
Petitioner also claims that he wrote and called his appellate
lawyer about the issue of unexhausted claims. Mot. Exh. B at 78.
Petitioner was told by appellate counsel that all arguments had
been joined with his co-defendant, so there was no need to
exhaust. Petitioner's appellate counsel now acknowledges that
this advice was incorrect. Petitioner's appellate counsel further
explains that she did not learn of this mistake until mid-April,
2004. Mot. Exh. B at 158-62. Petitioner claims that the confusion
caused by his appellate lawyer's misadvisement was compounded by
his limited English language skills. Mot. Exh. B at 79-80.
On December 10, 2001, petitioner filed a state habeas corpus
petition in the California Supreme Court raising the previously
non-exhausted claim. Mot. Exh. B at 84. On the part of the form
that calls for an explanation if the claim was not raised on
appeal, petitioner wrote, "Issue was raised at Appellate Level
but not at state Supreme Court Level. Appellate Program
attorney's made that choice without my knowledge." Mot. Exh. B at
89. Petitioner also acknowledged that he had raised the claim in
a petition for habeas relief, which had been dismissed without prejudice in June. Mot. Exh. B at 91. On April
17, 2002, the California Supreme Court summarily denied
petitioner's state habeas petition. Mot. Exh. B at 156.
Petitioner's family retained current counsel in March 2004.
Mot. Exh. B at 81. Petitioner's current counsel pursued
investigation, research and analysis to ensure exhaustion and
presentation of all potential claims. Mot. Exh. B at 176-77. As a
result, on November 18, 2004, petitioner's counsel filed a state
habeas corpus petition in the Court of Appeal for the Sixth
Appellate District of California. Mot. Exh. A. The petition
claimed that petitioner had been deprived of effective assistance
of counsel by his appellate lawyer's failure to originally
include the unexhausted claim in petitioner's petition for review
and by appellate counsel's later misadvisement that the claim had
been exhausted. Also on November 18, 2004, petitioner's counsel
filed in the same state court a motion to recall the remittitur.
Mot. Exh. C. On December 9, 2004, the court summarily denied both
the petition and the motion. Mot. Exh. D. On December 22, 2004,
petitioner's counsel filed a petition for review in the
California Supreme Court. Mot. Exh. E. The petition was summarily
denied on March 2, 2005. Mot. Exh. F.
The instant Rule 60(b) motion was filed on June 6, 2005.
Petitioner's counsel asserts that she intended to file the
instant Rule 60(b) motion in April 2005. She states that she was
delayed due to a "clerical error" on her part and because of
problems with petitioner's receipt of mail at the prison where
petitioner was held in custody. Mot. Exh. A at 3. Petitioner's
counsel sent petitioner a corrected substitution of attorney form
on May 2, 2005. Petitioner's counsel did not follow up on the
matter. Petitioner called counsel on May 23, 2005. During this
conversation, petitioner's counsel learned that petitioner had
not received the form. After petitioner's counsel complained to
the prison's Litigation Coordinator, the substitution of attorney
form surfaced and was delivered to petitioner. Mot. Exh. A at
I. Legal Standard
Under Federal Rule of Civil Procedure 60(b), "[o]n motion and
upon such terms as are just, the court may relieve a party . . .
from a final judgment . . . [for] any other reason justifying
relief from the operation of the judgment." Fed.R.Civ.P. 60(b).
The motion must be made "within a reasonable time." Id. In
addition, a movant seeking relief under Rule 60(b)(6) must show
extraordinary circumstances justifying the reopening of a final
judgment. See Gonzalez v. Crosby, 125 S.Ct. 2641, 2649
(2005). A district court considering a Rule 60(b) motion will
often take into account factors such as "the diligence of the
movant, the probable merit of the movant's underlying claims, the
opposing party's reliance interests in the finality of the
judgment, and other equitable considerations." Id. at 2652.
II. Petitioner's Claim of Extraordinary Circumstances
Petitioner moves to reopen the proceedings and reinstate the
petition for writ of habeas corpus that was dismissed without
prejudice on June 11, 2001. Petitioner acknowledges that the
passage of four years of time is considerable. Mot. at 7.
However, petitioner claims that under the circumstances, the
instant motion was filed within a reasonable time. Likewise,
petitioner claims that extraordinary circumstances justify
reopening the proceedings.
Petitioner claims that his appellate lawyer's failure to
exhaust claims at the state level combined with her failure to
check the papers filed and her subsequent misadvisement to
petitioner constitutes ineffective assistance of counsel.
Petitioner further claims that this ineffective assistance of
counsel was compounded by the petitioner's lack of access to
legal papers and his limited English language skills. Petitioner
argues that in totality these facts establish extraordinary
circumstances justifying equitable relief.
The Court need not reach whether the circumstances cited by
petitioner establish ineffective assistance of counsel. Even
assuming that these circumstances constitute "extraordinary
circumstances" that prevented petitioner from taking action from
June 2001 to December 2001, these circumstances did not prevent petitioner
from taking timely action after the California Supreme Court
denied his state habeas petition in April 2002.
Petitioner offers no valid explanation for his two-year delay
between April 2002 and March 2004. The asserted ineffective
assistance of counsel did not prevent the petitioner from taking
timely action during this period. Indeed, petitioner's filing of
his state habeas petition on December 10, 2001, and his
statements in that petition demonstrate that, despite any
misadvisement, petitioner understood both his factual situation
and the directions the Court gave him in its May 3 order. See
Hamilton v. Newland, 374 F.3d 822, 825 (9th Cir. 2004);
Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (in
equitable tolling context, petitioner "must show that the
`extraordinary circumstances' were the cause of his
untimeliness"). In the present case, no extraordinary
circumstances justify petitioner's untimeliness. Therefore,
petitioner's Rule 60(b) motion was not made "within a reasonable
Finally, petitioner also argues relief should be granted
because the Court's dismissal without prejudice of petitioner's
original habeas petition after the Antiterrorism and Effective
Death Penalty Act (AEDPA) grace period had run created an
insurmountable procedural obstacle that did not exist on the day
of filing the petition. Petitioner cites Rhines v. Weber,
125 S.Ct. 1528 (2005), and argues that instead of dismissal a
permissible option would have been to hold petitioner's mixed
petition in abeyance. However, at issue in Rhines was merely
"whether a federal district court has discretion to stay the
mixed petition to allow petitioner to present his unexhausted
claims to the state court in the first instance, and then return
to federal court for review of his perfected petition." Rhines,
125 S.Ct. at 1531. The Rhines court held that a stay and
abeyance may be permissible; but it did not hold that a district
court was required to issue a stay, nor did it hold that a
district court was required to inform a petitioner of the stay
and abeyance procedure. Id. at 1535.
In Pliler v. Ford, 124 S.Ct. 2441, 2446 (2004), the Supreme
Court held that a federal district court judge is not required to
inform a pro se petitioner what he would have to do to invoke the
stay and abeyance procedure. Likewise, the Court in Pliler held
that a district court is not required to inform a pro se petitioner that absent
equitable tolling his federal claims would be time-barred on his
return to federal court. See Pliler, 124 S.Ct. at 2446. The
Ninth Circuit followed the Pliler holding in Brambles v.
Duncan, 412 F.3d 1066 (9th Cir. 2005). In Brambles, as in the
present case, the court gave the petitioner the choice to either
dismiss the unexhausted claims only or to dismiss the entire
petition without prejudice. See Brambles,
412 F.3d at 1068-69. The Ninth Circuit concluded that the petitioner was not
affirmatively misled by the district court. Id. at 1071. The
Brambles court noted that "the Supreme Court in Pliler
admonished district courts against attempting to explain to pro
se litigants these federal habeas procedures, stating that
attempting to do so might prove to be misleading." Id. (citing
Pliler, 124 S.Ct. at 2446). Therefore, the district court's May
3, 2001 order and June 11, 2001 dismissal without prejudice of
petitioner's claims do not constitute extraordinary circumstances
that justify reopening the proceedings.*fn2
Petitioner is not entitled to reopen the proceeding.
Petitioner's Rule 60(b) motion was not made within a reasonable
time. See Fed.R.Civ.P. 60(b). In addition, no extraordinary
circumstances justify the reopening of the final judgment.
Therefore, petitioner's motion is DENIED.
IT IS SO ORDERED.
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