Cook v. Duncan

76 F. App'x 807

Opinion

MEMORANDUM

Footnotes

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California state prisoner Ronald Crawford Cook appeals the district court’s denial of his Federal Rule of Civil Procedure 60(b) motion for relief from the dismissal of his 28 U.S.C. § 2254. Cook seeks to challenge his 1991 juiy-trial conviction and sentence for second-degree murder with a firearm. This court reviews for abuse of discretion a district court’s denial of a Rule 60(b) motion. Greenawalt v. Stewart, 105 F.3d 1268, 1273 (9th Cir.1997). We vacate and remand.

Cook argues that he is entitled to relief under Rule 60(b) because he mistakenly requested dismissal of his § 2254 petition due to his mental disability.

At the time the district court dismissed Cook’s federal petition and denied his motion for reconsideration, the court did not have the benefit of our decisions in Ford v. Hubbard, 330 F.3d 1086, 1100 (9th Cir. 2003) (as amended) (concluding that the district court erred when it failed to inform a pro se petitioner that, on the face of his first petition, he would be time-barred upon returning to federal court with newly-exhausted claims), Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir.) (as amended), cert. denied, — U.S. —, 123 S.Ct. 2094, 155 L.Ed.2d 1077 (2003) (deciding that “the district court must consider the alternative of staying the petition after dismissal of unexhausted claims, in order to permit Petitioner to exhaust those claims and then add them by amendment to his stayed federal petition”), Smith v. Ratelle, 323 F.3d 813, 819 (9th Cir.2003) (determining that district court’s erroneous dismissal of a mixed habeas petition resulted in “extraordinary circumstances” to justify equitable tolling), and Guillory v. Roe, 329 F.3d 1015, 1018 (9th Cir.2003) (noting that petitioner must demonstrate diligence in exhausting claims, and stating that “the relevant measure of diligence is how quickly a petitioner sought to exhaust the claims dismissed as unexhausted, and how quickly he returned to federal court after doing so.”).

Accordingly, we vacate the district court’s denial of Cook’s motion for recon sideration, and remand so the district court may determine in the first instance whether the dismissal of his petition warrants relief from judgment in light of this court’s subsequent decisions. See Fed. R. Civ. P 60(b)(6) (providing that the court may relieve a party from a final judgment, order, or proceeding for “any [] reason justifying relief from the operation of the judgment”).

VACATED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.