Robinson v. Valerie Estrada, et al

Filing 31

ORDER on 29 Reply to the Court's Order to Show Cause by Judge Lewis T. Babcock on 9/9/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02659-LTB

JAMES M. ROBINSON,
Applicant,
v.
VALERIE ESTRADA,
Respondent.

ORDER

The matter before the Court is Applicant’s Reply to Order to Show Cause, ECF
No. 29, filed on August 31, 2015. The Court must construe the Reply liberally because
Applicant is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
On July 27, 2015, the Court directed Applicant to respond and show cause within
thirty days why the Court should not dismiss this action for failure to comply with the
Court’s September 16, 2013 Order. Applicant was directed in the September 16 Order
that if he desired to continue with this case after completion of the state court appellate
process, he must request that the stay be lifted within thirty days of the completion of
the appeal process.
Applicant failed to comply with the September 16 Order within thirty days after
the Colorado Supreme Court denied certiorari review in his postconviction proceeding
on July 28, 2014. Applicant also failed to comply with the Court’s July 27, 2015 Order to
Show Cause within the time allowed. Applicant’s Reply to the Order to Show was due

on August 26, 2015. The reply was dated and signed on August 29, 2015, and filed
until August 31, 2015. Applicant fails to state any reason for not timely responding to
the Court’s July 27, 2015 Order.
When Applicant did not respond to the July 27 Order within the time allowed, the
Court denied Applicant’s Motion to Reinstate, ECF No. 25, on August 28, 2015. Even if
the Court were to consider Applicant’s untimely Reply, the Court finds no basis for
granting the Motion to Reinstate and for not dismissing this action.
Applicant states that “[u]nder Rules 6(b) and 60(b), where the specified period for
the performance of an act has elapsed, a district court may enlarge the period and
permit the tardy act or relieve a party of its obligation where the omission is the result of
excusable neglect.” ECF No. 29 at 1. Applicant does not state, but it appears he is
referring to Rules 6(b) and 60(b) of the Federal Rules of Civil Procedure.
First, Applicant appears to argue that an extension of over ten months to comply
with the September 16, 2013 Order is provided for under Rule 6(b). “Rule 6(b) is a rule
of general application giving wide discretion to the court to enlarge [ ] time limits or
revive them after they have expired.” Fed. R. Civ. P. 6 advisory committee’s notes to
1946 Amendment Subdivision (b) (page 76). “[A] finding of excusable neglect under
Rule 6(b)[ (1)(B) ] requires both a demonstration of good faith by the parties seeking the
enlargement and also it must appear that there was a reasonable basis for not
complying within the specified period.” In re Four Seasons Sec. Laws Litig., 493 F.2d
1288, 1290 (10th Cir. 1974). Rule 6(b)(1)(B)’s “excusable neglect” standard requires an
equitable determination, “taking account of all relevant circumstances surrounding the
party's omission.” Pioneer Investment Services Co. v. Brunswick Associates Limited

2

Partnership, 507 U.S. 380, 395 (1993). However, “[i]t is not enough for excusable
neglect that the plaintiff appears pro se and has otherwise not been dilatory.” Pflum v.
United States, 2002 WL 1334857, *1 (D. Kan. 2002).
Applicant contends that he was completely surprised that the Court had
instructed him to file a request to lift the stay within thirty days after he had exhausted
state court remedies. The Court order that stayed this action so Applicant could
complete the exhaustion of his state court remedies also instructed Applicant that he
had thirty days after he had exhausted his state court remedies to request a lift of the
stay. Order Administratively Closing the Case, ECF No. 23 at 3. The display receipt for
ECF No. 23 indicates the order was sent to Applicant at the address that was provided
to the Court and current on September 16, 2013. The envelope in which the September
16 Order was mailed to Applicant was not returned to the Court.
Because Applicant knew that the case had been stayed and he was required to
request a lift of the stay to proceed, and because the Court Docket in this case shows
that the September 16 Order was sent to Applicant and not returned to the Court as
undeliverable, Applicant’s claim of surprise is not well-founded and does not serve as a
basis for this Court to find excusable neglect as Applicant suggests. Furthermore, it is
unreasonable that Applicant waited almost a year after completing the exhaustion of his
state court remedies to request that the stay be lifted. Applicant’s other arguments in
the Reply do not address why he was not able to comply with the Court’s September
16, 2013 Order within the time allowed.
The Court, therefore, finds that Applicant fails to demonstrate excusable neglect
for the purpose of Rule 6(b). As a result, the Court finds no basis for granting an

3

extension of time to request a lift of the stay entered in this case on September 16,
2013.
As for Rule 60(b), “the court may relieve a party . . . from a final judgment, order,
or proceeding” for various reasons. Relief under Rule 60(b) is appropriate only in
extraordinary circumstances. See Massengale v. Oklahoma Bd. of Examiners in
Optometry, 30 F.3d 1325, 1330 (10th Cir. 1994). Applicant, however, does not state
what specific reason enumerated under Rule 60(b) is the basis for his argument. It
appears that because he is claiming “surprise, or excusable neglect,” he intends to
challenge the September 16, 2013 Order based on Rule 60(b)(1).
For the same reasons why the Court found Applicant has failed to demonstrate
excusable neglect under Rule 6(b), the Court also finds that Applicant fails to
demonstrate some extraordinary circumstance for reconsidering the September 16,
2013 Order under Rule 60(b). To the extent Applicant appears to argue reconsideration
of the September 16 Order based on the merits of his claims and the one-year time
period to file a 28 U.S.C. § 2254 action in this Court (assumably pursuant to 28 U.S.C. §
2244(d)), the arguments are nonresponsive. The Court did not dismiss this action on
the merits or as untimely. These arguments do not address the reason why the Court
should disregard Applicant’s failure to prosecute in this case.
Applicant, therefore, has failed to demonstrate some extraordinary circumstance
as required under Rule 60(b) for waiving the thirty-day time period set forth in the
September 16, 2013 Order. Accordingly, it is
ORDERED that Applicant’s untimely Reply to the Court’s Order to Show Cause,
ECF No. 29, fails to demonstrate a basis for reconsideration by the Court of the denial

4

of Applicant’s Motion to Reinstate Habeas Corpus Proceeding, ECF No. 25, or of the
dismissal of this action.
DATED at Denver, Colorado, this 9th day of

September , 2015.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

5