Dilbert v. Martel

Filing 11

ORDER DENYING RULE 60(b) MOTION (SI, COURT STAFF) (Filed on 7/6/2011) (Additional attachment(s) added on 7/7/2011: # 1 Envelope) (tf, COURT STAFF).

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 CLIFFORD DILBERT, 9 Petitioner, United States District Court For the Northern District of California 10 11 12 13 No. C 10-3396 SI (pr) ORDER DENYING RULE 60(b) MOTION v. M. MARTEL, warden, Respondent. / 14 This action for writ of habeas corpus was dismissed because the petition was barred by 15 the statute of limitations. Petitioner has filed a motion for relief from the judgment under Rule 16 60(b)(1) and (6) of the Federal Rules of Civil Procedure. In his motion for relief from the 17 judgment, petitioner argues that the procedural default of untimeliness imposed by the Napa 18 County Superior Court in denying his first habeas petition should not have been honored and 19 therefore this court erred in determining that his first state habeas petition did not toll the one- 20 year limitations period for the filing of a federal petition. Petitioner's procedural default 21 argument is irrelevant to the statute of limitations question. The motion to dismiss required 22 consideration of the timeliness of the federal petition under the federal habeas statute of 23 limitations, 28 U.S.C. § 2244(d), and not whether the petition was procedurally defaulted. Cf. 24 See Artuz v. Bennett, 531 U.S. 4, 9 (2000) ("the question whether an application has been 25 ‘properly filed’ is quite separate from the question whether the claims contained in the 26 application are meritorious and free of procedural bar"). 27 judgment is DENIED. (Docket # 10.) 28 The motion for relief from the 1 A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case 2 in which "jurists of reason would find it debatable whether the petition states a valid claim of 3 the denial of a constitutional right and that jurists of reason would find it debatable whether the 4 district court was correct in its procedural [rulings]" in the Order Of Dismissal or in this order. 5 Slack v. McDaniel, 529 U.S. 473, 484 (2000). The denial of the certificate of appealability is 6 without prejudice to petitioner seeking a certificate from the United States Court of Appeals for 7 the Ninth Circuit. 8 9 IT IS SO ORDERED. DATED: July 6, 2011 _______________________ SUSAN ILLSTON United States District Judge United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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