(HC) Bouie v. Board of Parole Hearings

E.D. California

(HC) Bouie v. Board of Parole Hearings

DecidedApril 25, 2025

Docket2:12-cv-01221

StatusUnknown

This text of (HC) Bouie v. Board of Parole Hearings ((HC) Bouie v. Board of Parole Hearings) is published on Counsel Stack Legal Research, covering District Court, E.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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(HC) Bouie v. Board of Parole Hearings, (E.D. Cal. 2025).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DIRK JA’ONG BOUIE, JR., No. 2:12-cv-01221-DC-AC (HC) 12 Petitioner, 13 v. ORDER GRANTING PETITIONER’S MOTION FOR RECONSIDERATION OF 14 BOARD OF PAROLE HEARINGS, MARCH 26, 2024, ORDER 15 Respondent. (Doc. Nos. 83, 88) 16 17 This matter is before the court on Petitioner Dirk Ja’ong Bouie, Jr.’s motion for 18 reconsideration of the court’s March 26, 2024 order (Doc. No. 81) striking the motion for 19 reconsideration Petitioner filed a year earlier on March 23, 2023 (Doc. No. 80). (Doc. No. 83.) 20 For the reasons explained below, the court will grant Petitioner’s motion for reconsideration of 21 the court’s March 26, 2024 order. 22 BACKGROUND 23 On June 10, 2021, Petitioner filed a motion for reconsideration of the court’s May 25, 24 2021 order denying his motion for an extension of time to file a notice of appeal. (Doc. No. 53.) 25 On July 2, 2021, the court denied Petitioner’s May 25, 2021 motion for reconsideration. (Doc. 26 No. 55.) On August 2, 2021, Petitioner filed a notice of appeal of the court’s denial of his motion 27 for reconsideration to the Ninth Circuit Court of Appeals. (Doc. No. 56.) 28 On August 12, 2021, Petitioner filed a motion for reconsideration of the Ninth Circuit’s 1 denial of his application for leave to file a second or successive petition for federal habeas relief. 2 (Doc. No. 62.) The court denied Petitioner’s motion and advised Petitioner that this court does not 3 have the authority to overturn a Ninth Circuit order. (Doc. No. 64.) On January 18, 2022, 4 Petitioner filed a second motion for reconsideration of the Ninth Circuit’s denial of his 5 application for leave to file a second or successive petition, which this court denied on January 6 27, 2022. (Doc. Nos. 77, 78.) In that order, the court noted Petitioner had been advised on more 7 than one occasion that this court does not have the authority to overturn a Ninth Circuit order and 8 “[a]ny further motions seeking to have this court reconsider, amend, or otherwise disturb an order 9 of the Ninth Circuit Court of Appeal will be disregarded.” (Id. at 1.) On August 25, 2022, the 10 Ninth Circuit denied Petitioner’s appeal. (Doc. No. 79.) 11 On March 23, 2023, Petitioner filed what he titled a “Second motion for relief from a 12 judgment pursuant to Federal Rule of Civil Procedure 60(b)(6).” (Doc. No. 80.) Therein, 13 Petitioner states that he seeks reconsideration of the court’s August 6, 2013 order and judgment 14 dismissing his habeas corpus petition as time barred on the ground that, according to recent state 15 and federal court decisions, proper application of statutory tolling renders his petition timely. (Id. 16 at 1.) Specifically, Petitioner relies on the holdings in Robinson v. Lewis, 9 Cal. 5th 883 (2020) 17 and Robinson v. Lewis, 824 F. App’x 494 (9th Cir. 2020). 18 On March 26, 2024, the court issued a minute order summarily striking Petitioner’s March 19 23, 2023, motion for reconsideration pursuant to the court’s January 27, 2022 order warning 20 Petitioner that further motions seeking reconsideration by this court of a Ninth Circuit’s decision 21 would be disregarded. (Doc. No. 81.) 22 On April 22, 2024, Petitioner filed the pending “opposition to order striking Rule 60(b)(6) 23 motion,” which the court construes as a motion for reconsideration pursuant to Rule 60(a) to 24 correct a mistake arising from oversight in improperly striking Petitioner’s March 23, 2023 25 motion for reconsideration. (Doc. No. 83.) In addition, on May 2, 2024, Petitioner filed an appeal 26 of the court’s March 26, 2024 order striking his motion to the Ninth Circuit. (Doc. No. 84.) On 27 June 12, 2024, the Ninth Circuit issued an order holding Petitioner’s appeal in abeyance in light 28 of Petitioner’s pending motion. (Doc. No. 87.) On October 18, 2024, Petitioner filed a “request 1 for delayed ruling,” in which he asks the court to grant his pending motion for reconsideration of 2 the court’s March 26, 2024 order.1 (Doc. No. 88.) 3 Respondent did not file a response to Petitioner’s pending motion for reconsideration 4 (Doc. No. 83) or request for a delayed ruling (Doc. No. 88.) On December 16, 2024, Petitioner 5 filed a notice of change of address. (Doc. No. 90.) 6 DISCUSSION 7 Under Rule 60(a), the court may correct a clerical mistake or a mistake arising from 8 oversight or omission whenever one is found in a judgment, order, or other part of the record. 9 Fed. R. Civ. P. 60(a). Relief under this rule can be granted on the court’s own motion and at any 10 time. Id. However, once an appeal has been filed and docketed, leave of the appellate court is 11 required to correct the mistake while the appeal is pending. Id. 12 Here, the court finds reconsideration of its order striking Petitioner’s March 23, 2023 13 motion is warranted under Rule 60(a) for the following reasons. First, the court finds its order 14 striking Petitioner’s March 20, 2023 motion was erroneous because that motion did not ask the 15 district court to reconsider, amend, or otherwise disturb an order of the Ninth Circuit. (Doc. No. 16 80.) Instead, the motion was brought under Federal Rule of Civil Procedure 60(b) and sought 17 reconsideration only of this court’s August 6, 2013 order and judgment based on what Petitioner 18 believes to be recent precedent from the California Supreme Court and Ninth Circuit regarding 19 the proper application of statutory tolling. (Id. at 1.) Next, the court finds reconsideration under 20 Rule 60(a) is appropriate because the Ninth Circuit has provided this court leave to address 21 Petitioner’s motion for reconsideration. (See Doc. No. 87) (“Appellate proceedings are therefore 22 held in abeyance until the district court decides the pending April 22, 2024 motion.”). Therefore, 23 the court will grant Petitioner’s pending motion for reconsideration of the court’s March 26, 2024 24 order striking his Rule 60(b)(6) motion and vacate that order. The court will also direct the Clerk 25 of the Court to reactivate the improperly stricken motion. (Doc. No. 83.) 26 Further, because Petitioner’s pending motion for reconsideration of the March 26, 2024 27 1 This action was reassigned to the undersigned district judge on October 21, 2024. (Doc. No. 28 89.) 1 order is being granted, Petitioner’s pending request for a ruling on that motion (Doc. No. 88) will 2 be denied as having been rendered moot by this order. 3 Separately, the court finds it appropriate to substitute Respondent Board of Parole 4 Hearings with the name of the proper respondent in this action. A petition for writ of habeas 5 corpus by an applicant in custody under a state court judgment shall name as respondent the state 6 officer who has custody. 28 U.S.C. § 2242; Rules Governing § 2254 Cases, Rule 2(a); see 7 Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (stating proper respondent in 8 federal habeas petition is petitioner's immediate custodian); see also Johnson v. Reilly, 349 F.3d 9 1149, 1153 (9th Cir. 2003) (finding the warden of the penitentiary where a prisoner is confined 10 constitutes the custodian who must be named in the petition). Accordingly, in light of the 11 reassignment of this case, the passage of time, and Petitioner’s notice of change of address, the 12 court will direct Respondent to clarify and update the court on the proper respondent in this 13 action. 14 Accordingly, 15 1.

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DIRK JA’ONG BOUIE, JR., No. 2:12-cv-01221-DC-AC (HC) 12 Petitioner, 13 v. ORDER GRANTING PETITIONER’S MOTION FOR RECONSIDERATION OF 14 BOARD OF PAROLE HEARINGS, MARCH 26, 2024, ORDER 15 Respondent. (Doc. Nos. 83, 88) 16 17 This matter is before the court on Petitioner Dirk Ja’ong Bouie, Jr.’s motion for 18 reconsideration of the court’s March 26, 2024 order (Doc. No. 81) striking the motion for 19 reconsideration Petitioner filed a year earlier on March 23, 2023 (Doc. No. 80). (Doc. No. 83.) 20 For the reasons explained below, the court will grant Petitioner’s motion for reconsideration of 21 the court’s March 26, 2024 order. 22 BACKGROUND 23 On June 10, 2021, Petitioner filed a motion for reconsideration of the court’s May 25, 24 2021 order denying his motion for an extension of time to file a notice of appeal. (Doc. No. 53.) 25 On July 2, 2021, the court denied Petitioner’s May 25, 2021 motion for reconsideration. (Doc. 26 No. 55.) On August 2, 2021, Petitioner filed a notice of appeal of the court’s denial of his motion 27 for reconsideration to the Ninth Circuit Court of Appeals. (Doc. No. 56.) 28 On August 12, 2021, Petitioner filed a motion for reconsideration of the Ninth Circuit’s 1 denial of his application for leave to file a second or successive petition for federal habeas relief. 2 (Doc. No. 62.) The court denied Petitioner’s motion and advised Petitioner that this court does not 3 have the authority to overturn a Ninth Circuit order. (Doc. No. 64.) On January 18, 2022, 4 Petitioner filed a second motion for reconsideration of the Ninth Circuit’s denial of his 5 application for leave to file a second or successive petition, which this court denied on January 6 27, 2022. (Doc. Nos. 77, 78.) In that order, the court noted Petitioner had been advised on more 7 than one occasion that this court does not have the authority to overturn a Ninth Circuit order and 8 “[a]ny further motions seeking to have this court reconsider, amend, or otherwise disturb an order 9 of the Ninth Circuit Court of Appeal will be disregarded.” (Id. at 1.) On August 25, 2022, the 10 Ninth Circuit denied Petitioner’s appeal. (Doc. No. 79.) 11 On March 23, 2023, Petitioner filed what he titled a “Second motion for relief from a 12 judgment pursuant to Federal Rule of Civil Procedure 60(b)(6).” (Doc. No. 80.) Therein, 13 Petitioner states that he seeks reconsideration of the court’s August 6, 2013 order and judgment 14 dismissing his habeas corpus petition as time barred on the ground that, according to recent state 15 and federal court decisions, proper application of statutory tolling renders his petition timely. (Id. 16 at 1.) Specifically, Petitioner relies on the holdings in Robinson v. Lewis, 9 Cal. 5th 883 (2020) 17 and Robinson v. Lewis, 824 F. App’x 494 (9th Cir. 2020). 18 On March 26, 2024, the court issued a minute order summarily striking Petitioner’s March 19 23, 2023, motion for reconsideration pursuant to the court’s January 27, 2022 order warning 20 Petitioner that further motions seeking reconsideration by this court of a Ninth Circuit’s decision 21 would be disregarded. (Doc. No. 81.) 22 On April 22, 2024, Petitioner filed the pending “opposition to order striking Rule 60(b)(6) 23 motion,” which the court construes as a motion for reconsideration pursuant to Rule 60(a) to 24 correct a mistake arising from oversight in improperly striking Petitioner’s March 23, 2023 25 motion for reconsideration. (Doc. No. 83.) In addition, on May 2, 2024, Petitioner filed an appeal 26 of the court’s March 26, 2024 order striking his motion to the Ninth Circuit. (Doc. No. 84.) On 27 June 12, 2024, the Ninth Circuit issued an order holding Petitioner’s appeal in abeyance in light 28 of Petitioner’s pending motion. (Doc. No. 87.) On October 18, 2024, Petitioner filed a “request 1 for delayed ruling,” in which he asks the court to grant his pending motion for reconsideration of 2 the court’s March 26, 2024 order.1 (Doc. No. 88.) 3 Respondent did not file a response to Petitioner’s pending motion for reconsideration 4 (Doc. No. 83) or request for a delayed ruling (Doc. No. 88.) On December 16, 2024, Petitioner 5 filed a notice of change of address. (Doc. No. 90.) 6 DISCUSSION 7 Under Rule 60(a), the court may correct a clerical mistake or a mistake arising from 8 oversight or omission whenever one is found in a judgment, order, or other part of the record. 9 Fed. R. Civ. P. 60(a). Relief under this rule can be granted on the court’s own motion and at any 10 time. Id. However, once an appeal has been filed and docketed, leave of the appellate court is 11 required to correct the mistake while the appeal is pending. Id. 12 Here, the court finds reconsideration of its order striking Petitioner’s March 23, 2023 13 motion is warranted under Rule 60(a) for the following reasons. First, the court finds its order 14 striking Petitioner’s March 20, 2023 motion was erroneous because that motion did not ask the 15 district court to reconsider, amend, or otherwise disturb an order of the Ninth Circuit. (Doc. No. 16 80.) Instead, the motion was brought under Federal Rule of Civil Procedure 60(b) and sought 17 reconsideration only of this court’s August 6, 2013 order and judgment based on what Petitioner 18 believes to be recent precedent from the California Supreme Court and Ninth Circuit regarding 19 the proper application of statutory tolling. (Id. at 1.) Next, the court finds reconsideration under 20 Rule 60(a) is appropriate because the Ninth Circuit has provided this court leave to address 21 Petitioner’s motion for reconsideration. (See Doc. No. 87) (“Appellate proceedings are therefore 22 held in abeyance until the district court decides the pending April 22, 2024 motion.”). Therefore, 23 the court will grant Petitioner’s pending motion for reconsideration of the court’s March 26, 2024 24 order striking his Rule 60(b)(6) motion and vacate that order. The court will also direct the Clerk 25 of the Court to reactivate the improperly stricken motion. (Doc. No. 83.) 26 Further, because Petitioner’s pending motion for reconsideration of the March 26, 2024 27 1 This action was reassigned to the undersigned district judge on October 21, 2024. (Doc. No. 28 89.) 1 order is being granted, Petitioner’s pending request for a ruling on that motion (Doc. No. 88) will 2 be denied as having been rendered moot by this order. 3 Separately, the court finds it appropriate to substitute Respondent Board of Parole 4 Hearings with the name of the proper respondent in this action. A petition for writ of habeas 5 corpus by an applicant in custody under a state court judgment shall name as respondent the state 6 officer who has custody. 28 U.S.C. § 2242; Rules Governing § 2254 Cases, Rule 2(a); see 7 Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (stating proper respondent in 8 federal habeas petition is petitioner's immediate custodian); see also Johnson v. Reilly, 349 F.3d 9 1149, 1153 (9th Cir. 2003) (finding the warden of the penitentiary where a prisoner is confined 10 constitutes the custodian who must be named in the petition). Accordingly, in light of the 11 reassignment of this case, the passage of time, and Petitioner’s notice of change of address, the 12 court will direct Respondent to clarify and update the court on the proper respondent in this 13 action. 14 Accordingly, 15 1. Petitioner’s motion for reconsideration of the court’s March 26, 2024 order 16 striking his March 23, 2023 Rule 60(b)(6) motion (Doc. No. 83) is GRANTED; 17 2. Petitioner’s request for a delayed ruling (Doc. No. 88) is DENIED AS MOOT; 18 3. The court’s March 26, 2024 order (Doc. No. 81) is VACATED; 19 4. The Clerk of the Court is directed to reactivate Petitioner’s March 23, 2023 Rule 20 60(b)(6) motion (Doc. No. 80); 21 5. Respondent is directed to file an opposition or statement of non-opposition to 22 Petitioner’s March 23, 2023 Rule 60(b)(6) motion (Doc. No. 80), and to clarify 23 and update the court on the name of the proper respondent in this action within 24 twenty-one (21) days of the date of entry of this order; and 25 ///// 26 ///// 27 ///// 28 ///// 1 6. Petitioner may file a reply to Respondent’s opposition within thirty (30) days of 2 the date of Respondent’s opposition. 3 4 5 IT IS SO ORDERED. □ 6 | Dated: _ April 24, 2025 EQUI os Dena Coggins 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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