Foley v. Rowland

Filing 29

ORDER signed by Magistrate Judge John F. Moulds on 07/02/12 ordering the clerk of the court is directed to file petitioner's 07/10/11 letter and the attachments thereto. Petitioner's 07/10/11 letter is construed as a motion for relief from judgment pursuant to FRCP 60(b)(6). The clerk of the court is directed to serve a copy of petitioner's motion and all attachements thereto together with a copy of this order on respondents. Within 21 days from the date of this order, responde nts may file and serve a response to petitioner's Rule 60(b)(6) motion. Petitioner's reply, if any, shall be filed and served within 14 days thereafter. The clerk of the court shall serve a copy of this order on petitioner's counsel of record and on petitioner at the address on the 07/10/11 motion. (Copy of this order served on petitioner at his Pelican Bay State Prison address on 07/10/11 letter) (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARK D. FOLEY,

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Petitioner,

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No. CIV S-01-0714 MCE JFM P

vs.

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JAMES ROWLAND, et al.,

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Respondents.

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ORDER
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Petitioner is a state prisoner proceeding with an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Petitioner was represented by counsel at the time the

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petition was filed and through entry of judgment, which was entered in this action on August 18,

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2004.

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This action was commenced on April 12, 2001 with the filing of a petition for writ

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of habeas corpus on petitioner’s behalf. The petition was filed by Attorney Mark D. Greenberg,

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who represented petitioner throughout the course of the proceedings in this court. On July 30,

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2001, respondents filed an answer to the petition, and on September 24, 2001, Attorney

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Greenberg filed a traverse on petitioner’s behalf. On July 1, 2004, the undersigned issued

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findings and recommendations recommending that the petition be denied. No objections were

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filed to the findings and recommendations. On August 18, 2004, the district court adopted the
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findings and recommendations in full and denied the petition. Judgment was entered on the same

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day.

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On February 12, 2010, petitioner filed a pro se request for information concerning

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the status of his petition. On February 16, 2010, the Clerk of the Court notified petitioner that

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the petition had been denied on August 18, 2004. On March 4, 2010, petitioner sent a letter to

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the Clerk of the Court in which he stated, inter alia, that he had not been notified of the denial

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and seeking a copy of the order. By order filed March 30, 2010, the Clerk of the Court was

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directed to serve a copy of petitioner’s March 4, 2010 letter on petitioner’s counsel of record and

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to serve a copy of the March 30, 2010 order on petitioner.

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On August 2, 2010, petitioner filed a motion for a court order directing Attorney

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Greenberg to show cause why he never notified petitioner of the denial and to send him copies of

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all documents in this case. By order filed January 28, 2011, the court directed the Clerk to serve

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a copy of petitioner’ August 2, 2010 motion on Attorney Greenberg and directed counsel to

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respond to the motion within thirty days. On February 25, 2011, Attorney Greenberg filed a

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declaration in which he averred, inter alia, that “[t]hrough inadvertence and neglect” he failed to

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inform petitioner at any time of the denial of his habeas corpus petition, and “failed to take any

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measures to preserve [petitioner]’s appellate rights and opportunities.” Declaration of Mark D.

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Greenberg, filed February 25, 2011, at ¶ 2. Mr. Greenberg further avers that work on two capital

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appeals during this period “distracted [him] from [his] usually heavy case load of appointed state

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court appeals and created a backlog in them at the time.” Id. at ¶ 8. He infers that it is “quite

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possible and most likely the case that in these circumstances I overlooked what was happening in

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a case in which I was receiving no remuneration.” Id. Finally, he avers that he receives “a

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tremendous amount of correspondence from incarcerated prisoners” and tends “to ignore the

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correspondence from former clients, especially when [his] involvement in the case had ended a

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long time ago.” Id. at ¶ 9. While he remembers receiving letters from petitioner, he associated

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them with his work on petitioner’s state appeal and he “had no memory of the federal habeas
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action at all.” Id. He considered petitioner “a former client in the remote category, and [he]

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ignored the correspondence” from petitioner. Id.

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On July 18, 2011, the court received from petitioner, pro se, a letter dated July 10,

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2011. The letter includes a request “that the court allow [him] back in to the courts to continue

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[his] appeal (rights) process afforded to me under the United States Constitution.” Good cause

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appearing, the court construes this as a motion for relief from judgment pursuant to Fed. R. Civ.

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P. 60(b)(6) and, so construed, will invite respondents to file a response.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. The Clerk of the Court is directed to file petitioner’s July 10, 2011 letter and

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the attachments thereto;

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2. Petitioner’s July 10, 2011 letter is construed as a motion for relief from
judgment pursuant to Fed. R. Civ. P. 60(b)(6);

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3. The Clerk of the Court is directed to serve a copy of petitioner’s motion and all
attachments thereto together with a copy of this order on respondents;

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4. Within twenty-one days from the date of this order respondents may file and
serve a response to petitioner’s Rule 60(b)(6) motion;

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5. Petitioner’s reply, if any, shall be filed and served within fourteen days
thereafter; and

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6. The Clerk of the Court is directed to serve a copy of this order on petitioner’s

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counsel of record and on petitioner at the address on the July 10, 2011 motion.

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DATED: July 2, 2012.

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12;fole0714.60b6

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