Rule 41(b) applicable in habeas cases
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- Rule 41(b) applicable in habeas cases
Written by the judges who cited it.
The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
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7 GREGORY L. BROWN, Case No. 21-cv-02649-YGR (PR)
8 Petitioner, ORDER DIRECTING RESPONDENT
TO SHOW CAUSE WHY THE
9 v. PETITION SHOULD NOT BE
GRANTED
10 CHARLES SCHUYLER, Acting Warden,1
11 Respondent.
12 Petitioner Gregory L. Brown filed the instant pro se petition for a writ of habeas corpus
13 pursuant to 28 U.S.C. § 2254. On May 6, 2021, the Court dismissed the petition because it was a
14 second petition, successive to his previous case, Case No. C 98-02013 MMC (PR), and he had not
15 obtained from the Ninth Circuit Court of Appeals an order authorizing the district court to
16 consider the petition. Petitioner appealed the Court’s dismissal of his petition. The Court granted
17 a certificate of appealability.
18 The Ninth Circuit Court of Appeals reviewed this Court’s decisions to dismiss the petition
19 in both this case and in his previously dismissed habeas, Case No. 20-cv-3405-YGR (PR). This
20 Court’s judgments in both cases were reversed and remanded in an opinion filed August 3, 2023.
21 In its August 3, 2023 opinion, the Ninth Circuit stated as follows:
22 Under the circumstances of this case, Brown’s petitions raise claims
that “were not ripe for adjudication” when he brought his prior habeas
23 petitions, and so should not be dismissed as second or successive.
United States v. Buenrostro, 638 F.3d 720, 725 (9th Cir. 2011) (per
24 curiam). Therefore, we reverse and remand.
25 Brown v. Atchley, 76 F.4th 862, 864, 873 (9th Cir. 2023). On August 25, 2023, the Ninth Circuit
26 mandate was issued.
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1 Thus, the petition is now before the Court. It does not appear from the face of the petition
2 that it is without merit. Good cause appearing, the Court hereby issues the following orders:
3 1. The Clerk of the Court shall serve a copy of this order upon respondent and
4 respondent’s attorney, the Attorney General of the State of California, at the following email
5 addresses: SFAWTParalegals@doj.ca.gov and docketingsfawt@doj.ca.gov. The petition and
6 the exhibits thereto are available via the Electronic Case Filing System for the Northern District of
7 California. The Clerk shall serve by mail a copy of this order on petitioner.
8 2. Respondent shall file with this Court and serve upon petitioner, within sixty (60)
9 days of the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules
10 Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued.
11 Respondent shall file with the Answer a copy of all portions of the relevant state records that have
12 been transcribed previously and that are relevant to a determination of the issues presented by the
13 petition.
14 3. If petitioner wishes to respond to the Answer, he shall do so by filing a Traverse
15 with the Court and serving it on respondent within sixty (60) days of his receipt of the Answer.
16 Should petitioner fail to do so, the petition will be deemed submitted and ready for decision sixty
17 (60) days after the date petitioner is served with respondent’s Answer.
18 4. Respondent may file with this Court and serve upon petitioner, within sixty (60)
19 days of the issuance of this Order, a motion to dismiss on procedural grounds in lieu of an
20 Answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing Section
21 2254 Cases. If respondent files such a motion, petitioner shall file with the Court and serve on
22 respondent an opposition or statement of non-opposition to the motion within sixty (60) days of
23 receipt of the motion, and respondent shall file with the Court and serve on petitioner a reply
24 within fourteen (14) days of receipt of any opposition.
25 5. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the
26 Court and respondent informed of any change of address and must comply with the Court’s orders
27 in a timely fashion. Pursuant to Northern District Local Rule 3-11 a party proceeding pro se
1 address specifying the new address. See L.R. 3-11(a). The Court may dismiss a pro se action
2 || without prejudice when: (1) mail directed to the pro se party by the Court has been returned to the
3 || Court as not deliverable, and (2) the Court fails to receive within sixty days of this return a written
4 || communication from the pro se party indicating a current address. See L.R. 3-11(b); see also
5 Martinez v. Johnson, 104 F.3d 769, 772 (Sth Cir. 1997) (Rule 41(b) applicable in habeas cases).
6 || Petitioner must also serve on respondent’s counsel all communications with the Court by mailing
7 a true copy of the document to respondent’s counsel.
8 6. Upon a showing of good cause, requests for a reasonable extension of time will be
9 || granted provided they are filed on or before the deadline they seek to extend.
10 IT IS SO ORDERED.
11 ||Dated: September 18, 2023
aq 12
JUDGE YVONNE GONZALEZ ROGERS
13 United States District Judge
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