United States District Court, D. Arizona
Dominic W. Lanza United Slates District Judge.
habeas proceeding, the magistrate judge issued a Report and
Recommendation (“R&R”) on January 29, 2019,
recommending that the petition be denied and dismissed with
prejudice. (Doc. 15.) The R&R further provided that
“[t]he parties shall have fourteen (14) days from the
date of service of a copy of this recommendation within which
to file specific written objections with the Court. . . .
Failure timely to file objections to the [R&R] may result
in the acceptance of the [R&R] by the district court
without further review.” (Id. at 16.) This
deadline came and went without Petitioner filing any
objections. Accordingly, on February 20, 2019, the Court
issued an order adopting the R&R and dismissing the case
(Doc. 16) and then entered judgment (Doc. 17).
pending before the Court is Petitioner's “Request
to File a Delayed Objection to Recommendation And Or, Grant
Certificate of Appealability.” (Doc. 18.) In it,
Petitioner states he was “confused” by and
“misunderstood” the instructions in the R&R
and “was under the impression that after the order
following the magistrate's recommendation, Petitioner
would then have the right to object.” (Id. at
2.) He thus asks “the Court to show mercy due to the
circumstances and allow an opportunity to file a delayed
objection or at least grant Petitioner a certificate of
appealability . . . .” (Id.)
Court will construe Petitioner's motion as a request for
relief under Federal Rule of Civil Procedure 60(b) based upon
excusable neglect. Whether neglect is “excusable”
is a flexible standard, “at bottom an equitable one,
taking account of all relevant circumstances surrounding the
party's omission.” Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395
(1993). At a minimum, courts assessing whether
neglect is “excusable” must consider four
factors: “ the danger of prejudice to the
[non-moving party],  the length of the delay and its
potential impact on judicial proceedings,  the reason for
the delay, including whether it was within the reasonable
control of the movant, and  whether the movant acted in
good faith.” Id.
the first factor-the danger of prejudice to the non-moving
party-weighs in Petitioner's favor. Respondents
didn't suffer any cognizable form of prejudice from
Petitioner's failure to comply with the 14-day deadline
for filing objections. Indeed, Respondents didn't even
file a response to Petitioner's motion. Cf.
LRCiv 7.2(i) (failure to respond to a motion “may be
deemed a consent to the . . . granting of the motion and the
Court may dispose of the motion summarily”).
second factor-the length of the delay-also weighs in
Petitioner's favor. “What constitutes
‘reasonable time' depends upon the facts of each
case, taking into consideration the interest in finality, the
reason for delay, the practical ability of the litigant to
learn earlier of the grounds relied upon, and prejudice to
the other parties.” Lemoge v. United States,
587 F.3d 1188, 1196 (9th Cir. 2009). Petitioner's
objections to the R&R were due by February 12, 2019.
Eight days after that deadline elapsed, the Court issued its
order adopting the R&R. Two days after that order was
issued, Petitioner filed his motion. This was not a lengthy
third factor-the reason for the delay-cuts against
Petitioner. Although he claims to have been confused by the
deadline-related language in the R&R, that language
couldn't have been clearer. And although he is a pro
se litigant, “[t]he liberal construction that is
granted pro se litigants in filing their complaints does not
mean that they are allowed lack of compliance with deadlines
that are imposed by law. ‘Liberal construction does not
mean liberal deadlines.'” Bramlett v. Metro
Narcotic Task Force, 2009 WL 2477263, *2 (M.D. Ga.
2009). See also Ghazali v. Moran, 46 F.3d 52, 54
(9th Cir. 1995) (“Although we construe pleadings
liberally in their favor, pro se litigants are bound by the
rules of procedure. Ghazali did not follow them, and his case
was properly dismissed.”).
fourth factor-whether Petitioner acted in good faith-weighs
in Petitioner's favor. The Court cannot conceive of any
possible practical advantage Petitioner could have hoped to
gain in bad faith by missing the deadline.
three of the four factors weigh in Petitioner's favor,
and because Respondents did not file a response, the Court
will grant the motion.
IT IS ORDERED that:
Petitioner's “Request to File a Delayed Objection
to Recommendation And Or, Grant Certificate of
Appealability” (Doc. 18) is granted;
judgment (Doc. 17) is vacated; and
Petitioner shall have fourteen (14) days from the date of
service of a copy of this Order within which to file specific
written objections to the R&R. Failure timely to file
such objections will result in the ...