Rowan Brooks v. James Yates

Filing 53

ORDER Directing Parties to File Briefs and Setting Briefing Schedule signed by Magistrate Judge Jennifer L. Thurston on 08/11/2016. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROWAN BROOKS,

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Petitioner,

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v.

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JAMES YATES,

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Respondent.

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Case No.: 1:11-cv-01315-LJO-JLT
ORDER DIRECTING PARTIES TO FILE BRIEFS
AND SETTING BRIEFING SCHEDULE
FORTY-FIVE DAY DEADLINE

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On November 22, 2011, the district court judge entered judgment against Petitioner and

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ordered the file closed. (Doc. 9) On October 22, 2012, Petitioner filed his notice of appeal. (Doc. 32)

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On March 28, 2016, the Ninth Circuit issued its decision, affirming in part and reversing in part the

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dismissal of the petition. (Doc. 43) In that decision, the Ninth Circuit noted that the “district court did

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not make findings with respect to whether Brooks was reasonably diligent.” (Id.) On remand, the

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Ninth Circuit directed this Court to make a determination whether Petitioner’s counsel acted diligently

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in pursuing relief from the Court’s judgment dismissing the petition. (Id.)

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The Court ordered the parties to file briefs regarding Petitioner’s diligence in seeking

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reconsideration under Rule 60, and, subsequently, the parties filed their briefs. (Docs. 48; 50; 51) On

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August 10, 2016, the District Judge issued an order granting the motion for reconsideration, setting

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aside the judgment, and referring the matter back to the Magistrate Judge for further proceedings.
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(Doc. 52)
In light of the District Judge’s referral order, which expressly declined to decide the issue of

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whether the conduct of Petitioner’s counsel entitled Petitioner to equitable tolling for the period

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preceding the filing of the instant petition, it would appear that this issue is now central to the

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proceedings and must be decided in order for the case to proceed. Accordingly, within 45 days,

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counsel may file briefs addressing whether the conduct of attorney Mitts’ entitles the petition to the

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equitable tolling, for the purpose of determining timeliness.

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The parties have already submitted arguments relating to this issue. Therefore, any party who

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wishes to rely upon the legal arguments and evidence presently in the record on the issue, may forego

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filing an additional brief and instead file a notice to this effect.
ORDER

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Accordingly, the Court ORDERS:

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1. Within 45 days, the parties SHALL file a brief addressing whether Petitioner is entitled to

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equitable tolling based upon attorney misconduct or a notice that the party is submitting the

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issue based upon the state of the current record.

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IT IS SO ORDERED.
Dated:

August 11, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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