Dilbert v. Martel

Filing 26

ORDER DENYING SECOND RULE 60(b) MOTION 25 (Illston, Susan) (Filed on 6/27/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C 10-3396 SI (pr)

CLIFFORD DILBERT

ORDER DENYING SECOND RULE
60(b) MOTION

Petitioner,
v.
M. MARTEL, warden,
Respondent.
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This action for writ of habeas corpus was dismissed on June 20, 2011 because the petition

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was barred by the statute of limitations. Petitioner filed a motion for relief from the judgment

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under Federal Rule of Civil Procedure 60(b)(1) and (6), which the court denied on July 6, 2011.

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This court denied a certificate of appealability in 2011 and the Ninth Circuit denied a certificate

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of appealability in 2012. The case returns for the court's attention because petitioner has filed

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a second motion for relief from the judgment under Federal Rule of Civil Procedure 60(b)(1) and

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(6). (Docket # 25.)

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Under Rule 60(b)(1), a party may move for relief from the judgment for "mistake,

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inadvertence, surprise, or excusable neglect." Such a motion must be made within one year

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after the entry of the judgment. See Fed. R. Civ. P. 60(c). Relief under Rule 60(b)(1) is

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foreclosed because petitioner's motion was filed more than a year after entry of the judgment.

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Rule 60(b)(6) is a “catchall provision” that allows relief for "any other reason that

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justifies relief" and applies only when the reason for granting relief from a judgment is not

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covered by any of the other reasons specified in Rule 60(b). See Jones v. Ryan, 733 F.3d 825,

839 (9th Cir. 2013). The movant "must show 'extraordinary circumstances' justifying the

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reopening of a final judgment." Id. (citation omitted). Relief under the catch-all provision of

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Rule 60(b)(6) is not warranted here. The overwhelming majority of the argument in the motion

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is just a rehash of arguments previously made and rejected. Some of it is simply a photocopy

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of earlier filings. Compare, e.g., Docket # 25-3 at 4-8 and Docket # 25-9 at 47-49 (pages 58-63

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and 248-250 of the second motion for relief from judgment) with Docket # 5 at 35-40 and 44-46

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(motion for a certificate of appealability) in Dilbert v. Martel, Ninth Circuit Case No. 11-16753.

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The relevant law has not changed. Petitioner has identified some new cases, but those cases do

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not alter the conclusion in the order of dismissal that his habeas petition is time-barred. He also

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United States District Court
For the Northern District of California

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presents no new relevant evidence. The evidence about the sleep and pain medications was

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known to him before this action was even filed, and has already been presented unsuccessfully

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to this court and the Ninth Circuit. The evidence that his appellate counsel was slow to deliver

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files (or, in petitioner's words, abandoned and extorted him) was known to him before this action

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was even filed and already has been considered. The only new information in the second motion

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for relief from judgment is that petitioner filed a complaint against his former appellate attorney

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in the California State Bar and received a letter dated April 16, 2014 from the California State

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Bar stating that his case had been reopened and his "complaint has now been forwarded to the

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Enforcement Unit for investigation and prosecution, if warranted." Docket # 25-10 at 2 (motion

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for relief from judgment, at 251). The existence of an open investigation does not prove there

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was attorney misconduct – what matters is what the attorney did or failed to do in 2008-2009,

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and those facts have long been known to and argued by petitioner in this court and the Ninth

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Circuit. Insofar as petitioner urges new or different facts about appellate counsel's acts and

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omissions in 2008-2009, relief under Rule 60(b)(6) is rejected for the additional reason that the

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motion was not made within a reasonable time of him becoming aware of those facts. See Fed.

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R. Civ. P. 60(c)(1) (motion under Rule 60(b)(4-6) must be filed "within a reasonable time"). The

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motion for relief from the judgment is DENIED. (Docket # 25.)

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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: June 27, 2014

_______________________
SUSAN ILLSTON
United States District Judge

United States District Court
For the Northern District of California

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