Howard v. Atchley
- Haywood Gilliam
- 4:20-cv-01681
- U.S. District Court · Northern District of California
- 2
In Howard v. Atchley, Judge Gilliam dismissed the action without prejudice because Howard did not file the required petition or payment application.
Justin Howard's federal action was dismissed without prejudice; the order permits him to seek reopening if he submits the required documents and explanation.
What happened
In Howard v. Atchley, Justin Howard asked the court to pause his federal case while he pursued an ineffective-assistance-of-counsel claim in state court. He did not include a habeas petition with that request.
The court told Howard to submit a petition on the proper form and either pay the filing fee or apply to proceed without paying it. After the court resent those instructions with his inmate number, the deadline passed without the required filings.
Judge Haywood S. Gilliam, Jr. dismissed the action without prejudice, entered judgment, and closed the case. Howard may ask to reopen the action, but any such request must include the required filings and explain why he missed the deadlines.
The detailed version
- Howard v. Atchley · No. 4:20-cv-01681
- Haywood Gilliam
- May 21, 2020
Background
On February 26, 2020, Justin Howard filed a request asking the court to hold his federal petition in abeyance while he exhausted an ineffective-assistance-of-counsel claim in state court. He did not attach a habeas petition to that request, and the court found no habeas petition filed in the Northern District of California.
On March 9, 2020, the court notified Howard that the action was deficient because he had not submitted a petition on the proper form and had not paid the filing fee or submitted an application to proceed without paying the fee. The court gave him 28 days to file the completed petition and either pay the fee or submit the application. The first notices were returned as undeliverable because the mailing did not include Howard's inmate number. The court resent the notices that same day with the inmate number and reset the deadline to April 20, 2020.
Ruling
The court stated that the deadline had passed and Howard had not filed a completed petition, paid the filing fee, or submitted the required application. It therefore dismissed the action without prejudice. The court explained that Howard may move to reopen the action, but any such motion must include a completed petition on the proper form, either a complete application to proceed without paying the fee or the filing fee, and an explanation for missing the court's deadlines. The clerk was directed to enter judgment and close the file.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.