Williams v. Martel et al

Filing 42

ORDER Denying 41 Motion for Reconsideration; ORDER Denying 37 Motion for Certificate of Appealability, signed by District Judge Anthony W. Ishii on 6/25/15. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES DAVID WILLIAMS, JR.,

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Petitioner,
v.

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MIKE MARTEL, Warden,

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Respondent.

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1:08-cv-01336 AWI DLB HC
ORDER DENYING MOTION FOR
RECONSIDERATION
[Doc. #41]
ORDER DENYING MOTION FOR CERTIFICATE
OFAPPEALABILITY
[Doc. #37]

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
On May 4, 2009, the Court issued an order adopting the findings and recommendation of the

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Magistrate Judge and denying the petition for writ of habeas corpus. Judgment was entered the same

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date. On May 11, 2009, Petitioner filed a notice of appeal to the Ninth Circuit Court of Appeals and

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the appeal was processed. On May 18, 2009, Petitioner filed a motion for certificate of appealability.

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On May 13, 2011, the Ninth Circuit denied the certificate of appealability. On June 14, 2012,

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Petitioner filed a motion for reconsideration pursuant to Federal Rules of Civil Procedure § 60(b),

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which is currently pending before the Court.

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Rule 60(b) of the Federal Rules of Civil Procedure provides:

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On motion and just terms, the court may relieve a party or its legal representative from a final
judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;

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(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no
longer equitable; or
(6) any other reason that justifies relief.
Petitioner contends that his arrest was unconstitutional because the officer did not have a

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warrant to enter the residence. He further argues he was never given a probable cause hearing on his

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arrest. Petitioner’s arguments do not merit reconsideration. First, the motion is untimely. Pursuant to

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Rule 60(c), the motion “must be made within a reasonable time – and for reasons (1), (2), and (3) no

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more than a year after the entry of the judgment or order or the date of the proceeding.” Here,

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judgment was entered on May 4, 2009. Petitioner delayed unreasonably for over three years before

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filing the instant motion on June 14, 2012. Second, the claim Petitioner seeks to argue was never

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presented to the Court in the petition. Petitioner cannot now introduce a new claim after the petition

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has been denied. To the extent Petitioner wishes to present a new claim, he must do so by filing a new

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habeas petition. However, he must first seek authorization from the Ninth Circuit Court of Appeals

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before he can file a second or successive petition in the district court. 28 U.S.C. § 2244(b)(3).

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Accordingly, Petitioner’s motion for reconsideration is DENIED. In addition, Petitioner’s

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motion for certificate of appealability is DENIED as moot insofar as the Ninth Circuit denied

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certificate of appealability on May 13, 2011.

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IT IS SO ORDERED.

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Dated: June 25, 2015

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SENIOR DISTRICT JUDGE

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