Rybolt v. Ryan

Filing 60

ORDER denying 53 Motion to Correct Errors in Document Number: 51 Court Order. (See document for further details). Signed by Senior Judge Paul G Rosenblatt on 5/6/13. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 Danny El Rybolt, Petitioner, 11 12 13 14 15 16 vs. Charles L. Ryan, Respondent. ) ) ) ) ) ) ) ) ) ) ) No. CV-11-01119-PHX-PGR ORDER In an Order (Doc. 51) entered on March 4, 2013, the Court dismissed the 17 petitioner’s § 2254 petition with prejudice on the ground that it was time-barred 18 due to being filed more than ten years after the expiration of the AEDPA’s one- 19 year statute of limitations. In the same order, the Court denied a number of the 20 petitioner’s pending motions, including his Motion to Reverse and Vacate as 21 Judgment is Void-Rule 6(c)(4) (Doc. 31), filed June 6, 2012. Pending before the 22 Court is the petitioner’s Motion to Correct Errors in Document: 51 Court Order 23 (Doc. 53), filed March 7, 2013, which the Court construes as a request that the 24 Court reconsider the denial of the Motion to Reverse and Vacate as Judgment is 25 Void-Rule 6(c)(4) (Doc. 31). The petitioner filed a Notice of Appeal (Doc. 54) 26 from the Court’s judgment of dismissal on April 2, 2013. 1 Having reviewed the reconsideration motion, the Court finds that it should 2 be denied. The Court acknowledges that the petitioner filed a Correction of 3 Cover Page (part of Doc. 33) on June 14, 2012, in which he stated that the 4 motion he wants reconsidered should have been denominated as a Rule 60(c)(4) 5 motion, and the Court understood at the time it entered its order and judgment of 6 dismissal that the petitioner was arguing that his state court judgment should be 7 vacated as being void, and presumed that he was referring to Fed.R.Civ.P. 8 60(b)(4).1 The Court denied the motion to vacate, using the title of the motion as 9 it was originally filed, because such a motion was procedurally improper at the 10 time it was filed because no judgment had yet been entered on the petitioner’s 11 federal habeas petition. Since a Rule 60 motion to vacate cannot be substituted 12 for a federal habeas action, it cannot be properly filed during the pendency of the 13 federal habeas action. Therefore, 14 15 16 IT IS ORDERED that the petitioner’s Motion to Correct Errors in Document Number: 51 Court Order (Doc. 53) is denied. DATED this 6th day of May, 2013. 17 18 19 20 21 22 23 24 25 26 1 Since there is no Federal Rule of Civil Procedure 60(c)(4), the Court assumed that the “Rule 60(c)(4)” cited by the petitioner was a misguided reference to Arizona Rule of Civil Procedure 60(c)(4), which is the state counterpart to Fed.R.Civ.P. 60(b)(4). The state procedural rule has no applicability in this federal habeas action. -2-

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