Bardo v. Clark

Background

Mario Joseph Bardo, a state prisoner proceeding without a lawyer, filed a petition under 28 U.S.C. § 2254 challenging his state conviction with the assistance of counsel. The court first granted the respondent’s unopposed request to dismiss for failure to exhaust state remedies, then reopened the case to allow Bardo to respond. Instead of filing an opposition, Bardo filed an amended petition.

The respondent then asked the court to dismiss the amended petition as untimely and for failure to exhaust one claim. The court granted that motion and dismissed the petition as untimely and for failure to exhaust state remedies as to all claims before Bardo filed the federal action on May 17, 2021. The court had also determined that the applicable limitations period ended on June 26, 2019.

Motion for reconsideration

Bardo sought reconsideration under Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure. A reconsideration motion asks the same court to change a prior judgment or order. Under Rule 59(e), the court explained, relief generally requires newly discovered evidence, a change in controlling law, or a clear error. Under Rule 60(b), relief may be available for specified problems such as mistake, newly discovered evidence, fraud, an invalid judgment, satisfaction of the judgment, or another extraordinary reason justifying relief.

Bardo argued that his counsel’s misconduct should qualify him for equitable tolling, meaning additional time to file because of circumstances recognized by law. He said that while counsel represented him, he was not allowed to file a motion or petition on his own and was dependent on counsel. The court found that this was essentially the same argument Bardo had made earlier. It repeated its prior conclusion that Bardo had not shown that counsel’s ineffective assistance caused the late filing.

The court noted that counsel filed the original petition on February 12, 2019, before the June 26, 2019 deadline. In the court’s view, Bardo therefore still had time to make sure the timely petition included all claims he wanted to pursue. The court also found that Bardo did not exercise due diligence, did not allege that counsel refused to discuss the matter or prevented him from acting diligently, and waited about eight months after the case was reopened before seeking to amend the petition. The court found no good cause for that delay.

Bardo also argued that the court had erred by dismissing the unexhausted claims with prejudice. The court said that rule would apply if exhaustion were the only reason for dismissal. Here, however, the amended petition was also untimely. The court had previously determined that allowing Bardo to return to state court to complete exhaustion would be futile because any newly exhausted claims would still be time-barred.

Ruling

The court found no clear error under Rule 59(e). It also found no basis for relief under Rule 60(b): Bardo did not identify a specific mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud by the respondent, invalidity or satisfaction of the judgment, or another qualifying reason. Judge Beth Labson Freeman therefore denied Bardo’s motion for reconsideration. The order terminated Docket No. 56 and stated that Bardo may appeal to the Ninth Circuit.