Brooks v. Cate

Filing 17

ORDER by Judge Lucy H. Koh granting 14 Motion for Leave to Proceed in forma pauperis; granting 15 Motion for Reconsideration ; Setting Briefing Schedule (Attachments: # 1 Certificate/Proof of Service) (mpb, COURT STAFF) (Filed on 12/4/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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BRUCE BROOKS,

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Petitioner,
v.
MATTHEW CATE,

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Respondent.

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No. C 13-1352 LHK (PR)
ORDER GRANTING MOTION FOR
RECONSIDERATION; GRANTING
APPLICATION TO PROCEED IN
FORMA PAUPERIS; SETTING
BRIEFING SCHEDULE
(Docket Nos. 14 & 15)

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On March 26, 2013, petitioner, a state prisoner proceeding pro se, filed a writ of habeas

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corpus. On May 29, 2013, the court denied petitioner’s motion for leave to proceed in forma

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pauperis (“IFP”), and directed petitioner to pay the $5.00 filing fee within thirty days. On July

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16, 2013, after having received no payment from petitioner, the court dismissed this action for

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failure to pay the filing fee. On July 31, 2013, petitioner filed a motion to reinstate his petition

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alleging that he had made a request to his counselor to send the $5.00 filing fee to this court. On

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September 26, 2013, having received no payment, the court denied petitioner’s motion to

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reinstate his petition. The court informed petitioner that it would consider re-opening this action,

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if and when he either paid the filing fee or filed a renewed motion for leave to proceed IFP

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demonstrating that he has insufficient funds to pay the filing fee. On October 15, 2013,

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petitioner filed a motion for reconsideration and an application to proceed IFP. (Docket Nos. 14,

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15.)
Order Granting Mot. for Recon.; Granting Mot. for Leave to Proceed IFP; Setting Briefing Schedule
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Rule 60(b) of the Federal Rules of Civil Procedure provides for reconsideration where

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one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect;

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(2) newly discovered evidence that by due diligence could not have been discovered before the

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court’s decision; (3) fraud by the adverse party; (4) voiding of the judgment; (5) satisfaction of

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the judgment; (6) any other reason justifying relief. See Fed. R. Civ. P. 60(b); School Dist. 1J v.

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ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). In the present motion, petitioner does not

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dispute the validity of the court’s denial of his IFP application filed on May 8, 2013. Rather,

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petitioner argues that he “is indigent, has no outside sources of money, and is employed within

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the CDCR for less than $0.18 per hour. As he owes restitution, [he] receives only 45% of that

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monthly pay.” (Docket No. 15.) Petitioner’s Inmate Statement Report indicates that petitioner

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had an average monthly balance of $5.69 for the past six months, and an average monthly

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deposit of $15.93 in his inmate trust account. (Docket No. 16.) This information is different

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than that indicated on his first IFP application and therefore petitioner has demonstrated a valid

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basis justifying reconsideration.

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Petitioner’s motion for reconsideration is GRANTED. The Clerk of the court is directed

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to RE-OPEN this action. Petitioner’s IFP application filed October 14, 2013, is GRANTED.

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On May 23, 2013, this court screened petitioner’s petition and found cognizable the following

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claims: (1) the trial court erred in prohibiting the admission of petitioner’s brain images via

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Single Photon Emission Computerized Tomography into evidence; (2) the trial court erred in

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permitting the prosecution to introduce testimony in rebuttal that was not presented in its case-

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in-chief; (3) the trial court’s instruction on involuntary manslaughter was improper; (4) counsel

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rendered ineffective assistance; and (5) the trial court’s denial of a motion for mistrial based on

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juror misconduct was erroneous. The court orders respondent to show cause why the petition

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should not be granted as to the above issues.

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This order terminates docket numbers 14 and 15.

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Order Granting Mot. for Recon.; Granting Mot. for Leave to Proceed IFP; Setting Briefing Schedule
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CONCLUSION

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1.

Petitioner’s motion for reconsideration (docket no. 15), is GRANTED. The

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Clerk shall RE-OPEN this case. Petitioner’s motion for leave to proceed IFP (docket no. 14), is

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GRANTED.

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2.

The Clerk shall serve by mail a copy of this order upon the respondent and the

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respondent’s attorney, the Attorney General of the State of California. The Clerk shall also serve

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a copy of this order on petitioner. A copy of the petition and all attachments thereto were

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previously mailed to respondent and respondent’s attorney on May 30, 2013.

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3.

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

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the date 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.

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Respondent shall file with the answer and serve on petitioner a copy of all portions of the

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underlying state criminal record that have been transcribed previously and that are relevant to a

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determination of the issues presented by the petition. If petitioner wishes to respond to the

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answer, he shall do so by filing a traverse with the court and serving it on respondent within

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thirty days of the date the answer is filed.

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4.

Respondent may file a motion to dismiss on procedural grounds in lieu of an

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answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section

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2254 Cases within sixty days of the date this order is filed. If respondent files such a motion,

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petitioner shall file with the court and serve on respondent an opposition or statement of non-

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opposition within twenty-eight days of the date the motion is filed, and respondent shall file

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with the court and serve on petitioner a reply within fourteen days of the date any opposition is

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filed.

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5.

It is petitioner’s responsibility to prosecute this case. Petitioner is reminded that

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all communications with the court must be served on respondent by mailing a true copy of the

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document to respondent’s counsel. Petitioner must keep the court and all parties informed of any

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change of address by filing a separate paper captioned “Notice of Change of Address.” He must

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comply with the court’s orders in a timely fashion. Failure to do so may result in the dismissal
Order Granting Mot. for Recon.; Granting Mot. for Leave to Proceed IFP; Setting Briefing Schedule
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of this action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).
IT IS SO ORDERED.
12/4/13
DATED: ____________________

_________________________
LUCY H. KOH
United States District Judge

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Order Granting Mot. for Recon.; Granting Mot. for Leave to Proceed IFP; Setting Briefing Schedule
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