George Franklin Butz v. Kathy Mendoza-Powers, Acting Warden

ORDER

Petitioner George Franklin Butz (“Butz”) filed an application for permission to file a second or successive petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 . Butz seeks consideration of the merits of claims presented in his first habeas petition. The district court dismissed that petition with prejudice for failure to prosecute, including failure to pay the filing fee. The district court did not consider the merits of the claims raised in the petition. Butz now presents evidence that between his filing of the pro se petition and its dismissal, he hired an attorney, Henry Russell Halpern (“Hal-pern”), to prosecute the petition, but that Halpern took no action, failing even to file an appearance.

When a district court dismisses with prejudice a petition for writ of habeas corpus under 28 U.S.C. § 2254 without reaching the merits of the claims raised therein, the petitioner may seek relief from judgment through a motion under Federal Rule of Civil Procedure 60(b), because such a motion is not the equivalent of a second or successive petition under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Gonzalez v. Crosby, 545 U.S. 524 , 125…