Johnson v. Stanton, et al

Filing 21

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/13/13 ORDERING that Petitioners January 22, 2013 motion 16 is GRANTED and the order and judgment (ECF Nos. 12 , 13 ) are set aside. The Clerk is directed to reopen the case. Respondent s hall file an answer or a motion in response to petitioners application within 60 days from the date of this order. Clerk shall serve a copy of this order together with a copy of petitioners February 7, 2013 first amended petition for a writ of habeas corpus, with any and all attachments on the United States Attorney. (cc US Atty)(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY DALE JOHNSON,

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Petitioner,

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v.

No. 2:12-cv-2239-EFB P

ORDER

GARY R. STANTON, et al.,
Respondents.

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Petitioner is a federal prisoner without counsel seeking a writ of habeas corpus pursuant to

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28 U.S.C. § 2241. This case is before the undersigned pursuant to petitioner’s consent. See 28

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U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(4).

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On October 24, 2012, the court dismissed petitioner’s application for writ of habeas

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corpus with leave to amend. ECF No. 11. The dismissal order explained the petition’s

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deficiencies, gave petitioner 30 days to file an amended petition correcting those deficiencies, and

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warned petitioner that failure to file an amended petition may result in this action being

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dismissed. Id. The 30-day period expired without petitioner filing an amended petition or

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otherwise complying with the court’s October 24, 2012 order. Therefore, on December 3, 2012,

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the action was dismissed and judgment was entered accordingly. ECF Nos. 12, 13.

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On January 7, 2013, petition filed a notice with the court in which he requested that the
Clerk send him a copy of the docket. ECF No. 14. Subsequent to receiving a response from the
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Clerk, petitioner requested his case be reopened. ECF No. 16. The court construes petitioner’s

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request as a motion for relief from the December 3, 2012 judgment pursuant to Federal Rule of

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Civil Procedure 60(b).

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Federal Rule of Civil Procedure 60(b)(1) provides that “[o]n motion and just terms, the

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court may relieve a party or its legal representative from a final judgment, order, or proceeding

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for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect . . . .”

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Petitioner claims that he did not receive the court’s order due to his transfer from Solano County

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Jail to a facility in New Jersey. He claims that while in New Jersey, he was placed in segregated

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housing and did not have this court’s address, nor the necessary postage to file a notice of change

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of address. Petitioner claims that it was not until he was subsequently transferred to Devens

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Federal Medical Center, located in Massachusetts, that he was able to inform this court of his new

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address.

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The court finds that petitioner’s failure to abide by the court’s deadlines due to his

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multiple transfers and inability to communicate with this court constitutes excusable neglect.

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Accordingly, the court will grant petitioner’s motion to set aside the judgment.

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On February 7, 2013, petitioner filed an amended petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2241. A judge “entertaining an application for a writ of habeas corpus

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shall forthwith award the writ or issue an order directing the respondent to show cause why the

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writ should not be granted, unless it appears from the application that the applicant or person

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detained is not entitled thereto.” 28 U.S.C. § 2243. It is not apparent from the face of the

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application that the petitioner is not entitled to relief.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s January 22, 2013 motion (ECF No. 16) is granted and the order and

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judgment (ECF Nos. 12,13) are set aside.

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2. The Clerk is directed to reopen the case.

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3. Respondent shall file an answer or a motion in response to petitioner’s application

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within 60 days from the date of this order. Any response shall be accompanied by any and all

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transcripts or other documents relevant to the determination of the issues presented in the

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application.

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4. Petitioner’s reply, if any, shall be filed and served within 30 days of service of an
answer.

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5. If the response to petitioner’s application is a motion, petitioner’s opposition or

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statement of non-opposition shall be filed and served within 30 days of service of the motion, and

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respondents’ reply, if any, shall be filed within 14 days thereafter.

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6. The Clerk shall serve a copy of this order together with a copy of petitioner’s February

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7, 2013 first amended petition for a writ of habeas corpus, with any and all attachments on the

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United States Attorney.

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Dated: August 13, 2013.

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