Foley v. Rowland

Filing 51

ORDER signed by Chief Judge Morrison C. England, Jr., on 8/19/15 ORDERING that this court's order 40 is VACATED. Petitioner's 28 motion for relief from judgment is GRANTED. Judgment 20 is VACATED and RE-ENTERED effective immediately. Petitioner is ORDERED to file a notice of appeal and motion for certificate of appealability within 30 days of the date that this Order is electronically filed. (Kastilahn, A)

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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. 2:01-cv-0714 MCE GGH P

v.

ORDER

MARTIN BITER, Warden,

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Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. On July 14, 2015, the United States Court of Appeals for the Ninth

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reversed this Court’s September 28, 2012 Order (ECF No. 40) denying Petitioner’s Motion for

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Relief from Judgment (ECF No. 28), and remanded for further proceedings. On August 6, 2015,

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the mandate issued. ECF No. 50.

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The Ninth Circuit determined that this Court’s September 28, 2012 order denying

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Petitioner’s Motion for Relief from Judgment pursuant to Federal Rule of Civil Procedure 60(b)

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was in error, as it was incorrectly based on the finding that Petitioner’s counsel had not

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abandoned him. The Ninth Circuit held that not only was Petitioner abandoned by his attorney,

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but that this abandonment prevented Petitioner from timely appealing the denial of his habeas

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petition. The Ninth Circuit further held that this Court erred in finding that Petitioner’s Motion

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for Relief from Judgment was untimely.

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Accordingly, IT IS HEREBY ORDERED that:

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1. This Court’s September 28, 2012 Order (ECF No. 40) is VACATED;

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2. Petitioner’s Motion for Relief from Judgment (ECF No. 28) is GRANTED;

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3. Judgment entered August 18, 2004 (ECF No. 20) is VACATED and RE-ENTERED

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effective immediately; and
4. Petitioner is ordered to file a notice of appeal and motion for certificate of appealability
within thirty days (30) of the date that this Order is electronically filed.
IT IS SO ORDERED.
Dated: August 19, 2015

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