Johnson v. Biter

Filing 31

ORDER GRANTING MOTION FOR RECONSIDERATION; VACATING ORDER OF DIMISSAL AND JUDGMENT; REOPENING FILE; TO SHOW CAUSE re 20 Objection filed by Stefon Deon Johnson. Signed by Judge William Alsup on 5/24/17. (Attachments: # 1 Certificate/Proof of Service)(dl, COURT STAFF) (Filed on 5/24/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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STEPHON DEON JOHNSON,

No. C 15-3640 WHA (PR)

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ORDER GRANTING MOTION FOR
RECONSIDERATION; VACATING
ORDER OF DISMISSAL AND
JUDGMENT; REOPENING FILE;
TO SHOW CAUSE

v.
For the Northern District of California

United States District Court

Petitioner,
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MARTIN BITER,
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Respondent.
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(ECF No. 20)
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INTRODUCTION
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This is a habeas case brought pro se by a state prisoner under 28 U.S.C. 2254
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challenging his sentence in state court. Respondent’s motion to dismiss the petition as untimely
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was granted. Petitioner then filed “Objections” to the dismissal, which was construed as a
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motion for relief from judgment under Rule 60(b) of the Federal Rules of Civil Procedure.
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Respondent has filed an opposition and petitioner has filed a reply brief.
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ANALYSIS
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Petitioner objects to the dismissal of the petition as untimely on the grounds that, prior
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to filing the instant petition, he believed he had filed a “protective” petition in federal court. A
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“protective” petition is a timely federal habeas petition that is stayed while the petitioner
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exhausts his state court remedies, and that effectively suspends the running of the limitations
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period. See Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (describing procedure for filing
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“protective” federal habeas petition and suspending AEDPA’s limitations period). No such
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protective petition was in fact filed in this court, as no petition filed by petitioner appears in the
court’s docket prior to the instant petition. According to petitioner, however, he had a good

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faith belief that such a petition had in fact been filed, and either prison officials or personnel at

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this court misplaced and lost the petition without his knowledge or fault.

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Rule 60(b) provides for relief from judgment where one or more of the following is

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shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence

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which by due diligence could not have been discovered in time to move for a new trial; (3)

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fraud by the adverse party; (4) the judgment is void; (5) the judgment has been satisfied; (6) any

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other reason justifying relief. Fed. R. Civ. P. 60(b).

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Petitioner’s motion for relief from judgment does not raise newly discovered evidence
under Rule 60(b)(2), does not assert fraud by the opposing party under Rule 60(b)(3), and does
not assert that the judgment is void or satisfied under Rule 60(b)(4)-(5). Rather, his assertion

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For the Northern District of California

United States District Court

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that he mistakenly believed that he had filed a protective federal petition that stopped the

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limitations period from expiring falls under Rule 60(b)(1). Because his motion for relief from

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judgment is covered by Rule 60(b)(1), the catch-all provision of Rule 60(b)(6) for “other”

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reasons justifying relief does not come into play.

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The determination whether relief should be granted under Rule 60(b)(1), “depends on at

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least four factors: (1) the danger of prejudice to the opposing party; (2) the length of the delay

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and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the

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movant acted in good faith.” Bateman v. United States Postal Serv., 231 F.3d 1220, 1223-24

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(9th Cir. 2000) (adopting standard to determine excusable neglect as set forth in Pioneer Inv.

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Servs. Co. v. Brunswick Assocs. Ltd., 507 U.S. 380, 395 (1993)). The court may consider the

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Pioneer factors without discussing how much weight it gives to each. M.D. v. Newport-Mesa

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Unified Sch. Dist., 840 F.3d 640, 643 (9th Cir. 2016) (per curiam).

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Respondent concedes correctly that there is no danger of prejudice because the motion

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for relief from judgment was filed only seventeen days after the motion to dismiss. For the

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same reason, the second factor — the length of the delay — also does not weigh against

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granting petitioner relief. The record presents no grounds for evaluating the reason for the

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seventeen-day delay, so that factor cannot be weighed in either direction. The fourth factor

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weighs strongly in favor of granting relief because petitioner had a good faith belief that he had
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properly followed the procedure for filing a protective federal petition, obtaining a stay and

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abeyance of that petition, and stopping the running of the limitations period.

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Petitioner explains that on April 1, 2014 — when approximately nine months remained

sealed envelope for mailing to this court in which he placed a federal habeas petition and a

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motion for stay and abeyance, as required under Pace to stop the limitations period from

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expiring while he exhausted his claims in the state courts (ECF No. 29-3 at 5). Petitioner

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placed this sealed envelope in another envelope that contained an application to proceed in

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forma pauperis (“IFP”) in federal court, as well as a state court petition for a writ of habeas

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corpus (ibid.). Petitioner intended to have prison officials complete the IFP application and

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For the Northern District of California

on the one-year limitations period for filing a federal petition — he gave prison officials a

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United States District Court

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send it with the stay and abeyance motion and federal petition to this court, but to send the state

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petition sent to the Alameda County Superior Court (ibid.). On April 14, 2014, petitioner

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received back from the clerk of this court the state habeas petition with instructions to file it in

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state court (ibid.). This was when he learned that prison officials had not mailed the state

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petition to the state court (as petitioner intended), and so petitioner sent that petition to the

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Alameda County Superior Court on April 16, 2014 (ibid.). Having received no indication from

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this court that no federal petition or stay and abeyance motion was received, petitioner believed

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that it had been submitted and stopped the federal statute of limitation from expiring based upon

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the “protective” federal petition procedure set forth in Pace.

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The record indicates that petitioner’s belief, while mistaken, was reasonably justified

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and in good faith. Petitioner has produced a partial copy of the protective federal petition dated

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April 1, 2014 (ECF No. 29-4). As he explains, he could not produce a full copy of the petition

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because he has been in administrative segregation since filing the instant petition, and prison

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officials have taken control of his property, including his legal papers (ECF No. 29 at 6). In

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addition, the prison mail log supports his account because it shows that mail was sent from

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petitioner to this court on April 2, 2014, no mail was sent from petitioner to the state court, and

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then mail was sent from this court to petitioner on April 14, 2014 (ECF No. 20 at 6). The

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failure of prison officials to send his state court petition to the correct court was certainly not
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petitioner’s fault. That there is no record of this court receiving or filing the federal petition or

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stay and abeyance motion does not mean he did not attempt to send it here. Prison officials may

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have lost, misplaced, or mis-sent the petition and motion, or this court may have misplaced or

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lost them. The fact that petitioner does not have evidence to that effect is reasonable because it

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is not at all clear how he would obtain such evidence, nor does it indicate any lack of good

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faith.

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Respondent’s effort to show that petitioner did not file a protective federal petition does

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not affect the Rule 60(b)(1) analysis. He does not need to prove that actually filed a protective

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federal petition, but rather that he mistakenly believed in good faith that he had properly
followed the Pace procedure for stopping the statute of limitations from running by sending a

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For the Northern District of California

United States District Court

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protective federal petition and motion for stay and abeyance to federal court.

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Respondent also argues that petitioner did not in fact believe that he had filed a

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protective federal petition. Respondent cites petitioner’s petitions to the superior court and the

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California Supreme Court, and the instant federal petition — all filed after his effort to file a

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protective federal petition — in which petitioner indicated that he had not yet “filed” a federal

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petition or did not have a petition “pending” in federal court. Petitioner explains that he so

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indicated because thought that a protective federal petition held in abeyance was not considered

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“filed” (ECF No. 29 at 6 n.1). This mistaken belief is understandable because petitioner is not a

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lawyer, nor was informed by this or any court that no federal petition was “filed.”

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Respondent’s argument that petitioner was not diligent is also rejected. The legal

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relevance of his diligence to the Rule 60(b)(1) analysis is not clear, except to the extent it may

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reflect the good faith of his mistake. In any event, his efforts easily amount to reasonable

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diligence. Petitioner made attempted to file both a state habeas petition and a protective federal

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habeas petition long before the statute of limitations had run. When he was informed by this

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court on April 14, 2014, that he should file the state petition in the Alameda County Superior

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Court, he did so two days later. He progressed to the California Court of Appeals after only

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three weeks of being denied in the superior court, and he went on to the California Supreme

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Court after six weeks of losing in the Court of Appeals. Petitioner also sought reconsideration
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of the dismissal of the instant petition in less than three weeks. For an incarcerated person in

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administrative segregation with limited access to his property, legal papers and a law library,

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and one who is not a lawyer, this is more than sufficiently diligent to indicate good faith.

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Finally, while petitioner would likely have learned that this court did not have a federal petition

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or stay motion from him if he had asked this court about them after April 1, 2014, he had no

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reason to suspect that this court did not have them or that he had not properly followed the

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protective petition procedure. Thus, his failure to make such an inquiry does not indicate a lack

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of reasonable diligence or good faith.

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excusable neglect under Rule 60(b)(1).

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For the Northern District of California

United States District Court

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Petitioner is entitled to relief from judgment on the basis of his mistake, inadvertence or

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CONCLUSION
For the foregoing reasons, petitioner’s motion for relief from judgment (ECF No. 20) is

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GRANTED. The order granting the motion to dismiss and the judgment are VACATED and the

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clerk shall REOPEN the file.

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Respondent shall file with the court and serve on petitioner, within 63 days of the date

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this order is filed, an answer conforming in all respects to Rule 5 of the Rules Governing

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Section 2254 Cases, showing cause why a writ of habeas corpus should not be granted based on

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the claim found cognizable herein. Respondent shall file with the answer and serve on

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petitioner a copy of all portions of the state prison disciplinary proceedings that are relevant to a

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determination of the issues presented by the petition.

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If petitioner wishes to respond to the answer, he shall do so by filing a traverse with the
court and serving it on respondent within twenty-eight days of the date the answer is filed.
IT IS SO ORDERED.

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Dated: May
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, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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