Wilkins v. Macomber

Filing 62

ORDER: CONSTRUING MOTION AS MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION; GRANTING MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION; AND SETTING BRIEFING SCHEDULE granting 61 Motion for Reconsideration. (Illston, Susan) (Filed on 6/21/2018)

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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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ORDER:
--CONSTRUING MOTION AS MOTION
FOR LEAVE TO FILE MOTION FOR
RECONSIDERATION;
-- GRANTING MOTION FOR LEAVE
TO FILE MOTION FOR
RECONSIDERATION; AND
--SETTING BRIEFING SCHEDULE

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Re: Dkt. No. 61

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United States District Court
Northern District of California

Case No. 16-cv-00221-SI

v.
JEFF MACOMBER,
Respondent.

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On May 5, 2017, petitioner Keenan Wilkins, a/k/a Nerrah Brown, through his recently

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appointed counsel filed an Amended Petition for writ of habeas corpus. Docket No. 43. On May

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8, 2018, the Court ruled on respondent’s motion to dismiss, finding that petitioner had not

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exhausted the majority of the claims in his amended petition. The Court ordered petitioner to file

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a notice choosing whether to (1) dismiss the unexhausted claims and move forward with his

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petition as to the unexhausted portion of Claim 12, (2) dismiss this action and return to state court

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to exhaust all of his claims, or (3) move for a stay of these proceedings while he exhausts his state

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court remedies. Docket No. 58.

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After receiving an extension of time to file his notice, on June 18, 2018, petitioner filed a
Docket Nos. 60, 61.

Petitioner states that he “has brought to

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motion for reconsideration.

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counsel’s attention that there are a number of state writs that were not addressed by respondent’s

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motion or brought to the Court’s attention by his counsel.” Docket No. 61 at 1. He attaches four

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such writs and requests that the Court grant him thirty days, or until July 18, 2018, to submit “any

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and all state writs[,]” at which point he asks that the Court rule on the motion for reconsideration.

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Dkt. No. 61-5.

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Civil Local Rule 7-9 states that “[n]o party may notice a motion for reconsideration

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without first obtaining leave of Court to file the motion.” Civil L.R. 7-9(a). To obtain leave to file

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a motion for reconsideration, “[t]he moving party must specifically show reasonable diligence in

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bringing the motion” as well as one of several circumstances, such as “a material difference in fact

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or law . . . from that which was presented to the Court before entry of the interlocutory order for

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which reconsideration is sought” or “[t]he emergence of new material facts or a change of law

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occurring after the time of such order[.]” Civil L.R. 7-9(b).
Although petitioner did not address or follow the process outlined in Civil Local Rule 7-9,

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the Court will construe the present motion as a request for leave to file a motion for

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United States District Court
Northern District of California

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reconsideration and will GRANT the motion for leave.

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The Court cautions, however, that petitioner bears the burden of proof that state judicial

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remedies were properly exhausted. See Parker v. Kelchner, 429 F.3d 58, 62 (3d Cir. 2005); Caver

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v. Straub, 349 F.3d 340, 345 (6th Cir. 2003); Winck v. England, 327 F.3d 1296, 1304 n.6 (11th

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Cir. 2003); see also Darr v. Burford, 339 U.S. 200, 218-19 (1950) (“petitioner has the burden . . .

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of showing that other available remedies have been exhausted”), overruled on other grounds by

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Fay v. Noia, 372 U.S. 391 (1963). Simply attaching his prior writs and asking for reconsideration

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will not suffice. Petitioner should cite to the page number and, where available, line numbers

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of the prior writs and match these to the specific claims in his Amended Petition. The

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Amended Petition contains twenty-three claims, and the claims in the pro se writs do not map

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precisely onto these claims. The Court will not engage in guesswork to determine which portions

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of the writs petitioner believes exhausted his claims here.

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For instance, petitioner states in his motion that “California Supreme Court docket number

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S200643 addresses Claim 8.” Dkt. No. 61 at 2. Docket number S200643 is a habeas petition that

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petitioner filed in March 2012 during his pretrial civil commitment to challenge the jail’s allegedly

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taking petitioner off of his hospital-prescribed medications. It is unclear to the Court how this

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exhausts Claim 8 of the Amended Petition, which is a post-conviction habeas petition. In his

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motion for reconsideration, petitioner should identify precisely which portion of the state writ he
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asserts exhausts Claim 8 and should explain why this is so. For consistency and ease of reference,

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petitioner should also continue to adhere to the claim numbering system utilized in the Amended

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Petition.

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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 July 18, 2018. Respondent shall file his opposition

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by August 8, 2018. If petitioner wishes to file a reply brief, he shall file it by August 22, 2018.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: June 21, 2018
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SUSAN ILLSTON
United States District Judge

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