Unpublished Disposition, 857 F.2d 1478 (9th Cir. 1988)

No. 86-1572.

United States Court of Appeals, Ninth Circuit.

Before FERGUSON and LEAVY, Circuit Judges, and STEPHEN WILSON,^*  District Judge.

MEMORANDUM^** 

Johnny B. Milton appeals the district court's order extending the time in which the State of California ("State") could retry him after his successful habeas corpus petition. He also appeals the denial of his Emergency Motion for Reconsideration of that extension. Milton argues that the district court judges abused their discretion by granting the State sixty additional days under authority of Federal Rule of Civil Procedure 60(b) (1) and (b) (6) ("Rule 60(b)") to retry the case. We affirm the district court.¹ 

Rule 60(b) provides in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; ... or (6) any other reason justifying relief from the operation of the judgment.

The Ninth Circuit has repeatedly affirmed the proposition that Rule 60(b) must be liberally applied so that, whenever possible, cases will be tried on their merits rather than disposed of due to procedural technicalities. See, e.g., Pena v. Seguros La Commercial, S.A., 770 F.2d 811, 814 (9th Cir. 1985); Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983) (en banc); In re Magouirk, 693 F.2d 948, 951 (9th Cir. 1982). This court thus "will reverse a ruling on such motions under Fed. R. Civ. P. 60(b) 'only upon a clear showing of abuse of discretion.' " Pena, 770 F.2d at 814 (citations omitted) (emphasis in original). See also Rodgers, 722 F.2d at 460 (abuse of discretion standard of review is applied in Rule 60(b) (1) cases "because determination of excusable neglect is left to the sound discretion of the district court.") There has been no showing that the district court abused its discretion in Milton's case. Moreover, the district court did not err by allowing the State time to retry Milton. Title 28 U.S.C. § 2243 and Supreme Court cases confirm that the district courts have great latitude to consider the totality of the circumstances when determining what constitutes justice in a particular case. Section 2243 provides that district courts shall "dispose of [a writ of habeas corpus] as law and justice require." The Supreme Court has found that the "statute does not limit the relief that may be granted to discharge of the applicant from physical custody. Its mandate is broad with respect to the relief that may be granted." Carafas v. LaVallee, 391 U.S. 234, 239 (1968); see also Irvin v. Dowd, 366 U.S. 717, 728-29 (1961) (citation omitted). A state should also be allowed a "reasonable time" for retrying a successful habeas corpus petitioner. Irvin, 366 U.S. at 729. The federal courts have not set a specific amount of time within which retrial must occur. See, e.g., Gardner v. Pitchess, 731 F.2d 637, 639 (9th Cir. 1984) (120 days allowed). Because it is generally left to the district courts to determine what is a "reasonable time" for bringing a new trial, 120 days is not excessive. Thus we affirm the district court.²