Free USCA Order Terminating Appeal - District Court of Delaware - Delaware

Case 1:95-cr-00068-SLR

Document 116

Filed 11/08/2007

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BLD-13

October 12, 2007 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT C.A. No. 07-2892

UNITED STATES OF AMERICA vs. HERBERT L. BENDOLPH (D. Del. Crim. No. 95-cr-0068) Present: MCKEE, RENDELL and SMITH, Circuit Judges Submitted are: (1) Appellant's request for a certificate of appealability under 28 U.S.C. § 2253(c)(1); Appellee's motion for summary affirmance; and Appellant's response to motion for summary affirmance, in the above-captioned case. Respectfully, Clerk MMW/BNB/slc ORDER The foregoing request for a certificate of appealability is denied. Accordingly, we do not reach the submission for summary action. Because Appellant challenged the District Court's conclusion that his § 2255 motion was untimely and that he was not entitled to equitable tolling, the argument was properly raised in a motion under Fed. R. Civ. P. 60(b). See Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005); Pridgen v. Shannon, 380 F.3d 721, 727 (3d Cir. 2004). The Court reviews the District Court's disposition of a Rule 60(b) motion for abuse of discretion. See, e.g., Reform Party of Allegheny County v. Allegheny County Dept. of Elections, 174 F.3d 305, 311 (3d Cir. 1999). "The general purpose of Rule 60(b) . . . is to strike a proper balance between the conflicting principles that litigation must be brought to an end and that justice must be done." Bougher v. Secretary of Health, Educ. & Welfare, 572 F.2d 976, 977 (3d Cir. 1978). The District

(2) (3)

Case 1:95-cr-00068-SLR

Document 116

Filed 11/08/2007

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Court did not abuse its discretion in denying appellant's Rule 60(b) motion, which reasserted arguments that had been rejected by the District Court when it denied Appellant's § 2255 motion, and by this Court when we affirmed the dismissal of the § 2255 motion as untimely. See United States v. Bendolph, 409 F.3d 155, 170 (3d Cir. 2005) (en banc). By the Court, /s/ Theodore A. McKee Circuit Judge Dated: November 8, 2007 SLC/cc: Mr. Herbert Bendolph Seth M. Beausang, Esq.

A True Copy Marcia M. Waldron, Clerk Certified order issued in lieu of mandate.

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