United States District Court, E.D. California
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
is a state prisoner proceeding through appointed counsel with
a petition for writ of habeas corpus pursuant to 28 U.S.C.
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.
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).
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.
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.
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
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).
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 ...