Lolar v. State of Oklahoma, The

Filing 13

OPINION AND ORDER by Chief Judge Gregory K Frizzell ; reopening case; reinstating document(s); setting/resetting deadline(s)/hearing(s): ( Filing Fee due by 5/24/2017); granting 8 Motion to Reconsider (Re: 1 PETITION for Writ of Habeas Corpus - 2254 ) (kjp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
MARCUS E. LOLAR,
Petitioner,
v.
JOE M. ALLBAUGH, Director,
Oklahoma Department of Corrections,
Respondent.

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Case No. 16-CV-692-GKF-TLW

OPINION AND ORDER
On November 16, 2016, Petitioner filed this habeas corpus action pursuant to 28 U.S.C. §
2254 (Dkt. 1), along with a motion to proceed in forma pauperis (Dkt. 2). On December 2, 2016,
the Court entered an Order denying the motion and directing Petitioner to pay the $5.00 filing fee
for this action by January 3, 2017 (Dkt. 3). Petitioner failed to pay the filing fee as directed by the
Court or to show cause for his failure to do so. Therefore, this action was dismissed without
prejudice on January 30, 2017, for Petitioner’s failure to comply with an Order of the Court (Dkt.
5).
On March 15, 2017, Petitioner filed a notice of matter under advisement for more than 90
days (Dkt. 6), and the following day the Clerk of Court responded with a letter and relevant
documents advising that this case had been dismissed without prejudice (Dkt. 7). On March 29,
2017, Petitioner filed a motion to reconsider the dismissal (Dkt. 8) and a notice of appeal to the
circuit court (Dkt. 9). The Court liberally construes Petitioner’s motion to reconsider as a motion
for relief from a final judgment, order, or proceeding, pursuant to Fed. R. C.V. P. 60(b).
Petitioner alleges in his motion that he never received the Court’s Order directing him to pay
the filing fee. He has submitted a copy of his facility Inmate Mail History, showing that after his

petition was filed on November 16, 2016, he did not receive any mail from this Court until March
20, 2017, which presumably was the letter advising him that his case had been dismissed. The
Inmate Mail History indicates to the Court that Petitioner did not receive the Court’s order denying
his motion to proceed in forma pauperis (Dkt. 3), the Order dismissing this action (Dkt. 4), or the
Judgment (Dkt. 5).1
Pursuant to Fed. R. C.V. P 60(b)(6), “the court may relieve a party . . . from a final judgment,
order, or proceeding for . . . any . . . reason that justifies relief.” The Court finds Petitioner’s missing
incoming mail justifies relief from the judgment. Therefore, Petitioner’s motion to reconsider the
dismissal of this action (Dkt. 8) is granted, the Court Clerk is directed to reopen this case, and
Petitioner is directed to pay the $5.00 filing fee within 30 days or by May 24, 2017.
ACCORDINGLY, IT IS HEREBY ORDERED that:
1. Petitioner’s motion to reconsider (Dkt. 8) is granted, pursuant to Fed. R. C.V. P. 60(b)(6).
2. The Court Clerk is directed to reopen this case.
3. Petitioner is directed to pay the $5.00 filing fee or show cause for his failure to pay the
fee within 30 days or by May 24, 2017.
4. The Court Clerk is directed to send a copy of this Opinion and Order to the Tenth Circuit
Court of Appeals.
IT IS SO ORDERED 24th day of April 2017.

1

These documents were sent to Petitioner with the March 16, 2017, letter (Dkt. 7).

2