Patterson v. Small

Filing 36

ORDER DENYING PETITIONER'S REQUEST FOR EXTENSION OF TIME TO FILE MOTION TO VACATE JUDGMENT. Signed by Judge Maxine M. Chesney on January 9, 2013. (mmcsec, COURT STAFF) (Filed on 1/9/2013) (Additional attachment(s) added on 1/9/2013: # 1 Certificate of Service) (tlS, COURT STAFF).

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 ) ) ) Petitioner, ) ) v. ) ) LARRY SMALL, Warden, ) ) Respondent. _____________________________ ) NORMAN PATTERSON, No. C 08-5423 MMC (PR) ORDER DENYING PETITIONER’S REQUEST FOR EXTENSION OF TIME TO FILE MOTION TO VACATE JUDGMENT (Docket No. 35) 16 On August 6, 2010, the Court granted respondent’s motion to dismiss as untimely the 18 above-titled pro se petition for a writ of habeas corpus; judgment was entered that same date. For the Northern District of California United States District Court 17 19 On May 20, 2011, the Court denied petitioner’s request for a certificate appealability 20 (“COA”). Petitioner then sought a COA in the United States Court of Appeals for the Ninth 21 Circuit, which was denied on October 25, 2011. On October 1, 2012, the United States 22 Supreme Court denied certiorari. 23 Petitioner has now returned to this Court by filing a request “to extend the time to file 24 a writ of mandate to vacate judgment, and or extend the time to file a 60(b) motion,” which 25 the Court construes as a motion for an extension of time to file a motion to vacate judgment 26 under Rule 60(b) of the Federal Rules of Civil Procedure. 27 A Rule 60(b) motion “must be made within a reasonable time,” and for a motion 28 under Rule 60(b)(1), (2) or (3), not more than a year after the entry of the judgment, see Fed. 1 R. Civ P. 60(c)(1), which time period is not extended by a pending appeal, see Greater 2 Boston Television Corp. v. F.C.C., 463 F.2d 268, 280 (D.C. Cir. 1971). Here, petitioner has 3 not specified the subsection of Rule 60(b) upon which he intends to rely or the particular 4 factual or legal basis he will assert in his proposed motion. Moreover, as noted above, 5 judgment in the instant action was entered over two years ago. Petitioner does not explain 6 why he waited over two years to bring a Rule 60(b) motion, and the Court finds, in light of 7 said delay, the motion cannot be “made within a reasonable time.” 8 Further, a Rule 60(b) motion ordinarily cannot be used as a means to reopen a 9 decision by the Court of Appeals. “The rule is well established that a district court must 10 comply strictly with the mandate rendered by the reviewing court. . . . Rule 60(b)(6) cannot 11 be properly used to alter the substantive content of a judgment once it has been affirmed on 12 appeal except in extraordinary situations.” Colorado Interstate Gas Co. v. Natural Gas 13 Pipeline Co. of America, 962 F.2d 1528, 1534 (10th Cir. 1992). As noted, petitioner does 14 not state the basis for his proposed motion to vacate judgment, let alone demonstrate an 15 extraordinary situation justifying such relief. 16 Accordingly, petitioner’s request for an extension of time to file a motion to vacate 17 judgment is hereby DENIED. 18 This order terminates Docket No. 35. 19 IT IS SO ORDERED. 20 DATED: January 9, 2013 21 22 ____________________________ MAXINE M. CHESNEY United States District Judge 23 24 25 26 27 28 2

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