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Brooks v. Yates

United States District Court, E.D. California

August 9, 2016

ROWAN BROOKS, Petitioner,
v.
JAMES YATES, Respondent.

         ORDER VACATING OCTOBER 5, 2012 ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT (Doc. 31) ORDER ON REMAND GRANTING PETITIONER’S MOTION FOR RELIEF FROM JUDGMENT DATED JUNE 13, 2012 (Doc. 12) ORDER VACATING JUDGMENT ENTERED ON NOVEMBER 22, 2011 (Doc. 10) ORDER REMANDING CASE TO MAGISTRATE JUDGE FOR FURTHER PROCEEDINGS

          Lawrence J. O’Neill United States Chief District Judge

         PROCEDURAL HISTORY

         Petitioner is a state prisoner proceeding through appointed counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         The original petition in this case was filed on August 9, 2011 by Petitioner’s then-counsel of record, Gregory H. Mitts. (Doc. 1). On August 15, 2011, after a preliminary review of the petition indicated that the petition may be untimely under federal law, the Magistrate Judge issued an Order to Show Cause why the petition should not be dismissed as untimely, and afforded counsel thirty days within which to file a response. (Doc. 6). Mr. Mitts filed no response.

         On October 20, 2011, the Magistrate Judge issued Findings and Recommendations to dismiss the petition and gave counsel twenty days within which to file objections. (Doc. 8). Mr. Mitts did not file objections. On November 22, 2011, this Court adopted the Findings and Recommendations, entered judgment, and closed the file. (Docs. 9 & 10).

         On June 13, 2012, Petitioner, without assistance of his counsel, filed a series of documents, including the instant motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b). (Doc. 12). In his motion for relief from judgment, Petitioner made a number of allegations charging Mr. Mitts with egregious negligence and ineffective assistance of counsel in failing to file a timely federal petition. Petitioner alleged, inter alia, that his family retained Mr. Mitts in March 2010 to represent him in Petitioner’s habeas corpus proceedings and other related legal matters; that Mr. Mitts did not keep Petitioner and his family apprised of various rulings in state court despite Petitioner’s monthly communications with Mr. Mitts; that Petitioner sent Mr. Mitts Petitioner’s entire file on or about August 6, 2011 [sic]; that Mr. Mitts filed the original petition in this case on August 9, 2011; that Mr. Mitts did not communicate with Petitioner and Petitioner only learned of this Court’s dismissal of the petition when Petitioner’s wife discovered that fact on the internet on November 25, 2011. (Doc. 12, pp. 5-6). Petitioner contended that counsel’s actions were negligent and entitle Petitioner to equitable tolling under federal law that would make his petition timely despite being filed beyond the one-year limitation period.

         On October 5, 2012, the Court denied Petitioner’s motion for relief. (Doc. 31). Of particular note, the Court rejected Petitioner’s claim of actual innocence as well as his claim that Mr. Mitts committed gross attorney negligence in his handling of Petitioner’s case, as distinct from ordinary attorney negligence. Petitioner filed a notice of appeal in the United States Court of Appeals, Ninth Circuit, on October 22, 2012. (Doc. 32). On October 28, 2012, the Ninth Circuit granted a certificate of appealability as to certain issues and permitted the appeal to go forward. (Doc. 42).

         Subsequently, on March 28, 2016, the Ninth Circuit issued an opinion which affirmed in part and reversed in part the decision of this Court. (Doc. 43). The Ninth Circuit affirmed that portion of the judgment regarding actual innocence. Brooks v. Yates, 818 F.3d 532, 533-534 (9th Cir. 2016). However, the appellate court reversed the judgment as to whether Petitioner’s counsel had abandoned him, concluding that Mitts was “grossly negligent in his representation of [Petitioner] at the time the district court ordered [Petitioner] to show cause why his petition should not be dismissed as untimely.” Brooks, 818 F.3d at 534 (Emphasis supplied).

         The Ninth Circuit pointed out that this Court had focused its inquiry on Mitt’s performance leading up to the habeas petition’s late filing, and determined that, because Mitt’s miscalculation of the filing deadline was only simple attorney negligence, Petitioner was not entitled to equitable tolling. The Court went on to state that

“[t]his was not the proper inquiry.
Instead, the proper inquiry is whether ‘extraordinary circumstances prevented [Petitioner] from taking timely action to prevent or correct an erroneous judgment, ’ [i.e.], the relevant judgment being the district court’s ultimate dismissal of the petition.”

Brooks, 818 F.3d at 534 (Emphasis supplied).

         Noting that, “[e]ven where a petitioner is abandoned by counsel, the petitioner must also show that he diligently pursued his rights before relief can be granted, ” and because the Court had not made express findings as to Petitioner’s diligence, the Ninth Circuit remanded the case to this Court for the specific purpose ...


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