Stone v. Holland

Filing 30

ORDER signed by District Judge John A. Mendez on 3/29/17 ORDERING that petitioner's 28 motion for reconsideration is DENIED. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AARON PARNELL STONE,

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Petitioner,

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No. 2:14-cv-02696 JAM AC P

v.

ORDER

KIMBERLY HOLLAND,

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Respondent.

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By order filed November 23, 2015, this court dismissed petitioner’s petition for a writ of

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habeas corpus filed pursuant to 28 U.S.C. § 2254, and entered judgment accordingly, on the

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ground that the petition was successive and petitioner had not obtained authorization from the

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Ninth Circuit Court of Appeals to proceed in district court. See 28 U.S.C. § 2244(b). See ECF

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No. 26.
Nearly one year later, on October 13, 2016, petitioner filed a motion for reconsideration

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pursuant to Rule 60(b)(5) and (6), Federal Rules of Civil Procedure, on the ground that his claim

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of ineffective assistance of appellate counsel (for failing to assert the ineffective assistance of

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petitioner’s trial counsel) is a matter of constitutional dimension requiring de novo review under

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Martinez v. Ryan, 132 S. Ct. 1309 (2012). See ECF No. 28.

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Notwithstanding the unexplained delay in filing,1 the motion must be denied on the

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ground that the underlying petition remains successive. See 28 U.S.C. § 2244(b). Petitioner’s

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reliance on Martinez is inapposite, as Martinez does not provide for an exception to the

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successiveness bar. Petitioner’s arguments for review of his claims must be directed to the Ninth

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Circuit Court of Appeals, in support of a request for authorization to proceed with a new and

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successive petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. See 28 U.S.C. §

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2244(b)(3)(A). Accordingly, this case will remain closed and any future filings will be ignored.

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Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for reconsideration,

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ECF No. 28, is DENIED.

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DATED: March 29, 2017

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/s/ John A. Mendez________________________

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UNITED STATES DISTRICT COURT JUDGE

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A motion for reconsideration under Rule 60(b) must be made “within a reasonable time;”
motions made under Rule 60(b)(1)-(3) must be made “no more than a year after entry of the
judgment.” Fed. R. Civ. P. 60(c)(1).
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