Hughes v. Marshall

Filing 18

ORDER by Judge ARMSTRONG granting 16 Motion to Set Aside Judgment (lrc, COURT STAFF) (Filed on 12/14/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California

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ORDER GRANTING MOTION FOR
RELIEF FROM JUDGMENT

Petitioner,

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No. C 11-01185 SBA (PR)

NICK R. HUGHES,

v.
Docket no. 16

JOHN MARSHALL, Warden,
Respondent.

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On March 10, 2011, Petitioner, a state prisoner, filed a petition for a writ of habeas
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corpus pursuant to 28 U.S.C. § 2254. On May 18, 2011, Respondent filed a motion to
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dismiss based on untimeliness and lack of exhaustion. (Dkt. 9). On December 20, 2011, the
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Court issued an Order denying the motion to dismiss based on untimeliness. However, the
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Court found that the petition was a mixed petition because it contained exhausted and
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unexhausted claims, and ordered Petitioner to inform the Court within thirty days from the
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date of the Order how he wanted to proceed with his mixed petition. (Dkt. 14). On January
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30, 2012, the Court dismissed the petition without prejudice because Petitioner had not
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responded to the Court’s Order within thirty days.
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On March 12, 2012, Petitioner filed the instant motion to set aside the judgment under
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Rule 60 of the Federal Rules of Civil Procedure. In his motion, Petitioner states that he
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received the Court’s January 30, 2012 Order on February 13, 2012 and allegedly learned for
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the first time that the Court had issued the December 20, 2011 Order to which he had not
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responded. Petitioner claims that he never received the December 20, 2011 Order, and thus,
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was not aware of his need to respond. Petitioner checked at the prison “post office” and was
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told that there was no record that the prison received the December 20, 2011 Order from the
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Court. Petitioner requests that this Court vacate the January 30, 2012 Order and reinstate the
December 20, 2011 Order.

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"A motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the district court is presented with newly discovered evidence,

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committed clear error, or if there is an intervening change in the controlling law." 389

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Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). Reconsideration is an

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"extraordinary remedy, to be used sparingly in the interests of finality and conservation of

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judicial resources." Kona Enters. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000).

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The Court finds that reconsideration is warranted in this case. Because Petitioner
never received the Court’s Order dismissing his case without prejudice, he was unaware that

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he was required to respond within thirty days of the date of the Order. Once Petitioner

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United States District Court
For the Northern District of California

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realized that he had not received the Court’s December 2011 Order, he promptly sought

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relief from this Court. Thus, Petitioner’s motion for relief from judgment is granted and his

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case will be reopened. Accordingly,

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IT IS HEREBY ORDERED THAT:

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1. Petitioner’s motion for relief from judgment is GRANTED.

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2. The Clerk shall re-open this case.

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3. The Clerk shall send to Petitioner a copy of the Court’s December 20, 2011 Order

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together with this Order.
4. Petitioner shall respond to the December 20, 2011 Order within thirty days of the
date of this Order is filed.
5. This terminates Docket no. 16.

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IT IS SO ORDERED.
DATED: 12/10/12
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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NICK R HUGHES,
Case Number: CV11-01185 SBA
Plaintiff,

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CERTIFICATE OF SERVICE
v.
JOHN MARSHALL et al,
Defendant.

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United States District Court
For the Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on December 14, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Nick R. Hughes V-59310
California Men’s Colony
P.O. Box 8101
San Luis Obispo, CA 93409

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Dated: December 14, 2012
Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk

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G:\PRO-SE\SBA\HC.11\Hughes1185.Rule 60 Grant.wpd

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