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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1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 7 United States District Court For the Northern District of California 10 11 ORDER GRANTING MOTION FOR RELIEF FROM JUDGMENT Petitioner, 8 9 No. C 11-01185 SBA (PR) NICK R. HUGHES, v. Docket no. 16 JOHN MARSHALL, Warden, Respondent. / 12 On March 10, 2011, Petitioner, a state prisoner, filed a petition for a writ of habeas 13 corpus pursuant to 28 U.S.C. § 2254. On May 18, 2011, Respondent filed a motion to 14 dismiss based on untimeliness and lack of exhaustion. (Dkt. 9). On December 20, 2011, the 15 Court issued an Order denying the motion to dismiss based on untimeliness. However, the 16 Court found that the petition was a mixed petition because it contained exhausted and 17 unexhausted claims, and ordered Petitioner to inform the Court within thirty days from the 18 date of the Order how he wanted to proceed with his mixed petition. (Dkt. 14). On January 19 30, 2012, the Court dismissed the petition without prejudice because Petitioner had not 20 responded to the Court’s Order within thirty days. 21 On March 12, 2012, Petitioner filed the instant motion to set aside the judgment under 22 Rule 60 of the Federal Rules of Civil Procedure. In his motion, Petitioner states that he 23 received the Court’s January 30, 2012 Order on February 13, 2012 and allegedly learned for 24 the first time that the Court had issued the December 20, 2011 Order to which he had not 25 responded. Petitioner claims that he never received the December 20, 2011 Order, and thus, 26 was not aware of his need to respond. Petitioner checked at the prison “post office” and was 27 told that there was no record that the prison received the December 20, 2011 Order from the 28 Court. Petitioner requests that this Court vacate the January 30, 2012 Order and reinstate the December 20, 2011 Order. 1 "A motion for reconsideration should not be granted, absent highly unusual 2 circumstances, unless the district court is presented with newly discovered evidence, 3 committed clear error, or if there is an intervening change in the controlling law." 389 4 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). Reconsideration is an 5 "extraordinary remedy, to be used sparingly in the interests of finality and conservation of 6 judicial resources." Kona Enters. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). 7 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 9 he was required to respond within thirty days of the date of the Order. Once Petitioner 10 United States District Court For the Northern District of California 8 realized that he had not received the Court’s December 2011 Order, he promptly sought 11 relief from this Court. Thus, Petitioner’s motion for relief from judgment is granted and his 12 case will be reopened. Accordingly, 13 IT IS HEREBY ORDERED THAT: 14 1. Petitioner’s motion for relief from judgment is GRANTED. 15 2. The Clerk shall re-open this case. 16 3. The Clerk shall send to Petitioner a copy of the Court’s December 20, 2011 Order 17 18 19 20 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. 21 22 23 24 IT IS SO ORDERED. DATED: 12/10/12 SAUNDRA BROWN ARMSTRONG United States District Judge 25 26 27 28 2 1 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 NICK R HUGHES, Case Number: CV11-01185 SBA Plaintiff, 5 6 7 8 CERTIFICATE OF SERVICE v. JOHN MARSHALL et al, Defendant. / 9 United States District Court For the Northern District of California 10 11 12 13 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. 14 15 16 17 Nick R. Hughes V-59310 California Men’s Colony P.O. Box 8101 San Luis Obispo, CA 93409 18 19 Dated: December 14, 2012 Richard W. Wieking, Clerk By: Lisa Clark, Deputy Clerk 20 21 22 23 24 25 26 27 28 G:\PRO-SE\SBA\HC.11\Hughes1185.Rule 60 Grant.wpd 3

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