United States v. 2007-02-01 | 06-71137 | BUTZ VMENDOZA-POWERS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 GEORGE FRANKLIN BUTZ, No. 06-71137
Petitioner, D.C. No.
v. CV-98-07584-
ER-ANKATHY MENDOZA-POWERS, Acting  Central DistrictWarden, of California,Respondent. Los Angeles
ORDER

Filed February 1, 2007
Before: Mary M. Schroeder, Chief Judge, Stephen Reinhardt
and Michael Daly Hawkins, Circuit Judges.
COUNSEL
Rich Pfeiffer, Santa Ana, California, for the petitioner.
Bill Lockyer, Attorney General of the State of California,
Robert R. Anderson, Chief Assistant Attorney General,
Pamela C. Hamanaka, Senior Assistant Attorney General,
Kenneth C. Byrne, Supervising Deputy Attorney General, and
Tita Nguyen, Deputy Attorney General, for the respondent.
ORDER
PER CURIAM:
Petitioner George Franklin Butz (“Butz”) filed an applica-
tion for permission to file a second or successive petition for
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writ of habeas corpus pursuant to 28 U.S.C. § 2254. Butz
seeks consideration of the merits of claims presented in his
first habeas petition. The district court dismissed that petition
with prejudice for failure to prosecute, including failure to pay
the filing fee. The district court did not consider the merits of
the claims raised in the petition. Butz now presents evidence
that between his filing of the pro se petition and its dismissal,
he hired an attorney, Henry Russell Halpern (“Halpern”), to
prosecute the petition, but that Halpern took no action, failing
even to file an appearance.
When a district court dismisses with prejudice a petition for
writ of habeas corpus under 28 U.S.C. § 2254 without reach-
ing the merits of the claims raised therein, the petitioner may
seek relief from judgment through a motion under Federal
Rule of Civil Procedure 60(b), because such a motion is not
the equivalent of a second or successive petition under the
Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”). See Gonzalez v. Crosby, 125 S. Ct. 2641 (2005);
28 U.S.C. § 2244(b)(3)(A). We hold that where, as here, the
district court dismisses the petition for failure to pay the filing
fee or to comply with the court’s orders, the district court does
not thereby reach the “merits” of the claims presented in the
petition and a Rule 60(b) motion challenging the dismissal is
not treated as a second or successive petition. See Crosby, 125
S. Ct. at 2648-49. Butz may file a Rule 60(b) motion without
obtaining prior authorization from this court. Cf. 28 U.S.C.
§ 2244(b)(3)(A).
I. Procedural History
On September 18, 1998, Butz filed a federal habeas petition
in the district court, acting pro se. He listed his address as
Blythe Ironwood State Prison. On September 28, 1998, a
magistrate judge issued a minute order notifying Butz that the
$5.00 filing fee remained due. On November 24, 1998, the
magistrate judge issued a second order, which required Butz
to pay the filing fee, submit a request to proceed in forma
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pauperis, or show cause why the petition should not be dis-
missed for failure to pay the fee. On May 19, 1999, having
received no response, the magistrate judge issued a report and
recommendation that the district court dismiss the petition for
failure to respond to the November 24 order. On August 3,
1999, the district judge adopted the report and recommenda-
tion and dismissed the action with prejudice.
On March 2, 2006, Butz, through new counsel, filed in this
court an application for authorization to file a second or suc-
cessive habeas petition under 28 U.S.C. § 2254. He contended
that his first habeas petition had been dismissed due to neglect
by his prior counsel, Halpern, and despite his own diligence.
Butz stated that he and his father had telephoned and written
Halpern to determine the status of his petition, but had
received no response. He supported these allegations with
copies of, inter alia, an April 16, 1999 cashier’s check for
$5,000.00 made out to Halpern; an October 5, 2000 letter to
Halpern inquiring about the status of his case; a May 22, 2001
letter to Halpern demanding a full refund of fees paid and the
return of his legal files; a complaint to and subsequent corre-
spondence with the State Bar of California; a letter from the
State Bar of California notifying him that Halpern had “ad-
mitted to his misconduct” and refunded the full fee paid; and
a copy of the refund check. Butz stated that he had not
appealed the August 3, 1999 dismissal of his habeas petition
because he “did not know that [it] had been dismissed.”
The habeas petitioner in Crosby filed a Rule 60(b) motion
challenging the district court’s dismissal of his case on statute
of limitations grounds. See Crosby, 125 S. Ct. at 2648. The
district court’s judgment of dismissal had not “substantively
addresse[d] federal grounds for setting aside [petitioner’s]
state conviction.” Id. The Supreme Court held that the Rule
60(b) motion was not subject to AEDPA’s prior authorization
requirement.
In this case, the district court dismissed Butz’s petition at
an even earlier stage in its evaluation, for failure to pay that
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court’s $5.00 filing fee. Considering Butz’s request to rein-
state his petition on the grounds that his counsel’s abandon-
ment constituted a “reason justifying relief from the operation
of the judgment,” Fed. R. Civ. P. 60(b)(6), therefore, would
“creat[e] no inconsistency with the habeas statute or rules.”
Crosby, 125 S. Ct. at 2648. Butz does not seek now to add
new claims to his petition or to adduce new evidence or cite
new law in support of claims previously adjudicated on the
merits. See id. at 2647. Because a Rule 60(b) motion by Butz
would not be the equivalent of a second or successive habeas
petition, his application for authorization to file such a peti-
tion is unnecessary.
II. Timeliness of Rule 60(b) Motion
Respondent argues that even if AEDPA does not bar a Rule
60(b) motion on the grounds Butz raises, such a motion would
be untimely. Rule 60(b) limits the time within which a motion
for relief from judgment may be made. Motions based on mis-
take, inadvertence, surprise, or excusable neglect, Fed. R. Civ.
P. 60(b)(1); on newly discovered evidence, Fed. R. Civ. P.
60(b)(2); or on fraud, misrepresentation, or other misconduct
of an adverse party, Fed. R. Civ. P. 60(b)(3), must be made
“within a reasonable time” and “not more than one year after
the judgment, order, or proceeding was entered or taken,”
Fed. R. Civ. P. 60(b). Motions based on other reasons, includ-
ing on “any other reason justifying relief from the operation
of the judgment,” Fed. R. Civ. P. 60(b)(6), must be made
“within a reasonable time,” Fed. R. Civ. P. 60(b).
Respondent contends that even if Butz could file his motion
under Rule 60(b)(6), a delay of more than six years between
the judgment and a Rule 60(b)(6) motion could not be “rea-
sonable.”
Butz, however, alleges explanations for the delay that may
satisfy his burden of showing he was sufficiently diligent in
pursuing his case. Butz alleges he made the attempts to
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remain in touch with his attorney and informed about the sta-
tus of his case. According to his papers he hired Halpern in
mid-April 1999. In a letter to Halpern dated October 5, 2000,
Butz recalled that they had met “at this prison” — Richard J.
Donovan Correctional Facility, to which he had been trans-
ferred since filing the habeas petition — at which time “you
informed me that you were going to review the case and get
back to me.”1 After that visit, the letter noted, Butz had
received only a change of address notice from Halpern, dated
April 25, 2000. Since receiving the notice, Butz had tried to
telephone Halpern “at least once a month,” but had been
unable to get through. Butz also stated that his father also had
left several messages with Halpern’s secretary, but none had
been returned.
On May 22, 2001, having apparently been unable to reach
Halpern, Butz wrote him to formally demand the return of his
fee and his case file, citing various provisions of the Califor-
nia Rules of Professional Conduct. On approximately June 4,
2003, still having had no response, Butz filed a complaint
against Halpern with the State Bar of California (“the Bar”).
By this time, Butz had learned that his petition had been dis-
missed in 1999. The different return addresses on the demand
letter and bar complaint indicate that Butz was transferred to
Avenal State Prison at some point between May 2001 and
June 2003.
We disagree with respondent that petitioner’s pro se status
throughout the proceedings below precludes his argument for
reconsideration of the dismissal based on his counsel’s aban-
donment of the case. Respondent points out that the magis-
trate judge’s November 24, 1998 order to show cause; his
1The record contains contradictory statements about when Halpern vis-
ited Butz in prison. Butz’s October 5, 2000 letter to Halpern characterizes
the visit as having occurred “earlier this year,” while a February 4, 2004
letter to the California State Bar states it occurred “[i]n the latter part of
1999.”
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May 19, 1999 report and recommendation; and the district
judge’s dismissal order should have been served directly on
Butz.
Butz states that he filed the June 2003 complaint against
Halpern “[a]s soon as” he learned of the dismissal, which sug-
gests that he did not receive service of the August 3, 1999 dis-
missal order. Butz’s transfers among California correctional
institutions between 1998 and 2003 may have interfered with
delivery of court mail to him; the district court’s docket still
shows Butz’s address as Blythe Ironwood State Prison, from
which he had been transferred by late 1999 or 2000, when
Halpern visited him at the Richard J. Donovan Correctional
Facility. Even had Butz received the report and recommenda-
tions, he might reasonably have assumed that Halpern would
either pay the fee without contacting him or tell him to pay
it directly. The district court on remand may make any neces-
sary factual determinations in its consideration of the timeli-
ness and merits of a Rule 60(b) motion by Butz.
We deny Butz’s request for authorization to file a second
or successive habeas petition as unnecessary. We construe the
request as a petition for a writ of mandamus to direct the dis-
trict court to consider the merits of a Rule 60(b) motion
requesting that the district court reconsider its dismissal order
and reach the merits of his petition. So construed, the petition
is granted. Should Butz file such a motion, the district court
shall consider it according to the appropriate legal standards
and in light of the considerations set forth in this order.
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