Wilkins v. Macomber

Filing 118

ORDER GRANTING MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION granting 114 Motion for Reconsideration. (Illston, Susan) (Filed on 10/7/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEENAN G. WILKINS,

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Petitioner,

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United States District Court
Northern District of California

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v.
JEFF MACOMBER,
Respondent.

Case No. 16-cv-00221-SI
ORDER GRANTING MOTION FOR
LEAVE TO FILE MOTION FOR
RECONSIDERATION
Re: Dkt. No. 114

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On January 7, 2019, the Court issued an Order finding that petitioner Keenan Wilkins, a/k/a

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Nerrah Brown, had not exhausted the majority of the claims in his amended petition for writ of

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habeas corpus. Docket No. 79. Shortly thereafter, the Court granted petitioner’s request for

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substitution of counsel and appointed new counsel to represent him. Docket Nos. 87, 92. Petitioner,

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through his new counsel, has now filed a motion for leave to file a motion for reconsideration of the

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Court’s January 7, 2019 Order as well as a second amended petition for writ of habeas corpus.

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Docket Nos. 114 (Mot.), 115.

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In his motion for leave, petitioner states that after his new counsel was appointed, “[c]ounsel

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subsequently obtained 35 unreviewed writ petitions and three complete writ petitions that had been

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previously filed with missing exhibits or attachments.” Mot. at 2; Docket No. 117 (Balogh Decl.)

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¶ 4. Petitioner also seeks to present argument regarding ineffective assistance of appellate counsel

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as it relates to exhaustion. To obtain leave to file a motion for reconsideration, “[t]he moving party

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must specifically show reasonable diligence in bringing the motion” as well as one of several

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circumstances, such as “a material difference in fact or law . . . from that which was presented to

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the Court before entry of the interlocutory order for which reconsideration is sought” or “[t]he

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emergence of new material facts or a change of law occurring after the time of such order[.]” Civil

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L.R. 7-9(b).

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The Court finds that, in light of petitioner’s change of counsel, the numerous state court

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petitions that petitioner’s new counsel uncovered, and delays caused by the COVID-19 pandemic,

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leave to file a motion for reconsideration is warranted here. The Court therefore GRANTS

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petitioner’s motion for leave to file a motion for reconsideration. As it has previously cautioned,

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the Court reminds petitioner that the motion for reconsideration should cite to the page number and,

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where available, line numbers of the prior writs and match these to the specific claims petitioner

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raises. Given the large number of claims raised in the petition (twenty-three) and the number of

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state court petitions filed (over fifty), the Court will not engage in guesswork to determine which

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portions of the writs might exhaust which claims.

United States District Court
Northern District of California

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Petitioner shall file his motion for reconsideration, including any and all state writs

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that he wishes the Court to consider, by October 19, 2020. Respondent shall file his opposition

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by November 9, 2020. If petitioner wishes to file a reply brief, he shall file it by November 23,

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2020.

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IT IS SO ORDERED.
Dated: October 7, 2020
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SUSAN ILLSTON
United States District Judge

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