Patterson v. Small
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).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
LARRY SMALL, Warden,
No. C 08-5423 MMC (PR)
ORDER DENYING PETITIONER’S
REQUEST FOR EXTENSION OF TIME
TO FILE MOTION TO VACATE
(Docket No. 35)
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
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.
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.
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.”
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.
Accordingly, petitioner’s request for an extension of time to file a motion to vacate
17 judgment is hereby DENIED.
This order terminates Docket No. 35.
IT IS SO ORDERED.
20 DATED: January 9, 2013
MAXINE M. CHESNEY
United States District Judge
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