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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CLIFFORD DILBERT,

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Petitioner,

United States District Court
For the Northern District of California

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No. C 10-3396 SI (pr)
ORDER DENYING RULE 60(b)
MOTION

v.
M. MARTEL, warden,
Respondent.
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This action for writ of habeas corpus was dismissed because the petition was barred by

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the statute of limitations. Petitioner has filed a motion for relief from the judgment under Rule

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60(b)(1) and (6) of the Federal Rules of Civil Procedure. In his motion for relief from the

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judgment, petitioner argues that the procedural default of untimeliness imposed by the Napa

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County Superior Court in denying his first habeas petition should not have been honored and

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therefore this court erred in determining that his first state habeas petition did not toll the one-

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year limitations period for the filing of a federal petition. Petitioner's procedural default

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argument is irrelevant to the statute of limitations question. The motion to dismiss required

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consideration of the timeliness of the federal petition under the federal habeas statute of

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limitations, 28 U.S.C. § 2244(d), and not whether the petition was procedurally defaulted. Cf.

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See Artuz v. Bennett, 531 U.S. 4, 9 (2000) ("the question whether an application has been

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‘properly filed’ is quite separate from the question whether the claims contained in the

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application are meritorious and free of procedural bar").

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judgment is DENIED. (Docket # 10.)

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The motion for relief from the

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A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case

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in which "jurists of reason would find it debatable whether the petition states a valid claim of

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the denial of a constitutional right and that jurists of reason would find it debatable whether the

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district court was correct in its procedural [rulings]" in the Order Of Dismissal or in this order.

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Slack v. McDaniel, 529 U.S. 473, 484 (2000). The denial of the certificate of appealability is

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without prejudice to petitioner seeking a certificate from the United States Court of Appeals for

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the Ninth Circuit.

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IT IS SO ORDERED.
DATED: July 6, 2011

_______________________
SUSAN ILLSTON
United States District Judge

United States District Court
For the Northern District of California

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