Rule 41(b) applicable in habeas cases
How later courts described this case
- Rule 41(b) applicable in habeas cases
Written by the judges who cited it.
The opinion
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5 UNITED STATES DISTRICT COURT
6 NORTHERN DISTRICT OF CALIFORNIA
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GREGORY L. BROWN,
8 Case No. 20-cv-03405-YGR (PR)
Petitioner,
9 ORDER DIRECTING RESPONDENT
v.
TO SHOW CAUSE WHY THE
10 PETITION SHOULD NOT BE
CHARLES SCHUYLER, Acting Warden,1
11 GRANTED
Respondent.
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13 I. BACKGROUND
14 Petitioner Gregory L. Brown filed the instant pro se petition for a writ of habeas corpus
15 pursuant to 28 U.S.C. § 2254. On June 3, 2020, the Court dismissed the petition because it was a
16 second petition, successive to his previous case, Case No. C 98-02013 MMC (PR), and he had not
17 obtained from the Ninth Circuit Court of Appeals an order authorizing the district court to
18 consider the petition.
19 Petitioner appealed the Court’s dismissal of his petition. The Court initially denied a
20 certificate of appealability. However, upon review, the Court later found that petitioner was not
21 challenging the same conviction and sentence, and instead his claims related to the state court’s
22 denial of his state habeas petition upon finding that the amendments to California Penal Code
23 §§ 188 and 189 did not affect his convictions. See Dkt. 12 at 2 fn. 1 in Case No. 21-cv-2649-YGR
24 (PR) (citing Dkt. 1 at 6-16). In addition, the Court noted that this case “seems to be unexhausted
25 because he had not presented his claims to the state appellate and supreme courts when he filed
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that case in 2020.”2 See id. (citing Dkt. 1 at 6 fn. 1). Thus, the Court noted as follows: “Even
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though dismissal of that prior action still seems to have been appropriate, the request for a COA
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should have been granted because jurists of reason could find it debatable whether this Court was
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correct in finding that Petitioner was challenging the same conviction/sentence.” See id.
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The Ninth Circuit Court of Appeals reviewed this Court’s decisions to dismiss the petition
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in both this case and in his other action, Case No. 21-cv-2649-YGR (PR). This Court’s judgments
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in both cases were reversed and remanded in an opinion filed August 3, 2023. In its August 3,
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2023 opinion, the Ninth Circuit stated as follows:
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Under the circumstances of this case, Brown’s petitions raise claims
10 that “were not ripe for adjudication” when he brought his prior habeas
petitions, and so should not be dismissed as second or successive.
11 United States v. Buenrostro, 638 F.3d 720, 725 (9th Cir. 2011) (per
curiam). Therefore, we reverse and remand.
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Brown v. Atchley, 76 F.4th 862, 864, 873 (9th Cir. 2023). On August 25, 2023, the Ninth Circuit
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mandate was issued.
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Thus, the petition is now before the Court. Because it has been more than three years since
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the petition was filed, the Court will leave it to the parties to discuss whether any exhaustion
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issues still remain. Also, it does not appear from the face of the petition that it is without merit.
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Good cause appearing, the Court hereby issues the following orders:
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1. The Clerk of the Court shall serve a copy of this order upon respondent and
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respondent’s attorney, the Attorney General of the State of California, at the following email
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addresses: SFAWTParalegals@doj.ca.gov and docketingsfawt@doj.ca.gov. The petition and
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the exhibits thereto are available via the Electronic Case Filing System for the Northern District of
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California. The Clerk shall serve by mail a copy of this order on petitioner.
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2. Respondent shall file with this Court and serve upon petitioner, within sixty (60)
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days of the issuance of this Order, an Answer conforming in all respects to Rule 5 of the Rules
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2 In its Aug. 3, 2023 opinion, the Ninth Circuit similarly noted that the petition was
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unexhausted at the time it was filed in 2020, stating as follows: “In May 2020, while Brown’s
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Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued.
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Respondent shall file with the Answer a copy of all portions of the relevant state records that have
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been transcribed previously and that are relevant to a determination of the issues presented by the
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petition.
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3. If petitioner wishes to respond to the Answer, he shall do so by filing a Traverse
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with the Court and serving it on respondent within sixty (60) days of his receipt of the Answer.
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Should petitioner fail to do so, the petition will be deemed submitted and ready for decision sixty
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(60) days after the date petitioner is served with respondent’s Answer.
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4. Respondent may file with this Court and serve upon petitioner, within sixty (60)
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days of the issuance of this Order, 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. If respondent files such a motion, petitioner shall file with the Court and serve on
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respondent an opposition or statement of non-opposition to the motion within sixty (60) days of
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receipt of the motion, and respondent shall file with the Court and serve on petitioner a reply
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within fourteen (14) days of receipt of any opposition.
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5. It is petitioner’s responsibility to prosecute this case. Petitioner must keep the
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Court and respondent informed of any change of address and must comply with the Court’s orders
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in a timely fashion. Pursuant to Northern District Local Rule 3-11 a party proceeding pro se
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whose address changes while an action is pending must promptly file a notice of change of
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address specifying the new address. See L.R. 3-11(a). The Court may dismiss a pro se action
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without prejudice when: (1) mail directed to the pro se party by the Court has been returned to the
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Court as not deliverable, and (2) the Court fails to receive within sixty days of this return a written
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communication from the pro se party indicating a current address. See L.R. 3-11(b); see also
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Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).
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Petitioner must also serve on respondent’s counsel all communications with the Court by mailing
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a true copy of the document to respondent’s counsel.
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6. Upon a showing of good cause, requests for a reasonable extension of time will be
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granted provided they are filed on or before the deadline they seek to extend.
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IT IS SO ORDERED.
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Dated: September 18, 2023
4 7 f / Ve
5 J E YVONNEGON EZ ROGERS
ited States District Judge
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