Free Order on Motion to Vacate - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

GEORGE LUIS HERRERA, Petitioner, vs. SAM SUBLETT and GRANT WOODS Respondents.

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No. CIV 00-226 PHX RCB O R D E R

On February 7, 2000, Petitioner George Luis Herrera filed a Petition for Writ of Habeas Corpus. Mot. (doc. # 1). On November

22, 2002, the Court issued an order denying the petition as untimely under the one-year limitations period of the AntiTerrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (doc. # 21). Judgment was entered the same day. Order

J. (doc. # 22).

Shortly thereafter, Petitioner attempted to appeal the denial of his petition. Notice of Appeal (doc. # 25). Both this Court and

the Ninth Circuit denied Petitioner's request for a certificate of

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appealability.1

Orders (doc. ## 24, 26).

Petitioner subsequently

filed the present motion for reconsideration pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. Mot. (doc. # 27). Having

carefully considered the arguments raised, the Court now rules. I. DISCUSSION Due to the passage of more than three years since judgment was entered, and since the Ninth Circuit's denial of his request for a certificate of appealability, Petitioner's motion is untimely under Rule 60(b). Motions under Rule 60(b)(1), (2) and (3) must be made

at the latest within one year after entry of judgment, which has already lapsed in this case. Motions under Rule 60(b)(4), (5) and

(6) must be made within a "reasonable time," which is determined based on the facts of each case. See United States v. Holtzman, In consideration of the

762 F.2d 720, 725 (9th Cir. 1985).

interest in finality, the prejudice to Respondents of disturbing the judgment, and the absence of exceptional circumstances, the Court finds that the delay of more than three years is not, in this case, a reasonable time for purposes of Rule 60(b). More importantly, Petitioner's motion does not raise any grounds that would warrant relief from judgment under Rule 60(b). The decision to grant or deny a motion for reconsideration is left to the sound discretion of the trial court. See Sch. Dist. No. 1J,

Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Such motions are disfavored and, absent exceptional

circumstances, are generally only appropriate "if the district

A certificate of appealability must issue before an appeal may be taken from a final order denying habeas relief. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). -2Case 2:00-cv-00226-RCB Document 29 Filed 12/04/2006 Page 2 of 4

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court (1) is presented with newly discovered evidence; (2) committed clear error or the initial decision was manifestly unjust; or (3) if there is an intervening change in controlling law." Id. In order to prove that the Court committed clear error,

Petitioner must demonstrate that the Court's action fell clearly outside the bounds of its authority. F.3d 1253, 1256 (9th Cir. 1999). See McDowell v. Calerdon, 197

If the propriety of the Court's

judgment is a debatable question, there is no clear error and the motion to reconsider is properly denied. Id.

In this case, Petitioner essentially argues that the Court committed clear error in finding his federal habeas petition timebarred under the AEDPA. Mot. (doc. # 27). Petitioner claims that

his state petition for post-conviction relief was filed in October of 1997, not 1998, rendering his federal habeas petition timely under the statutory tolling provision of 28 U.S.C. § 2244(d)(2). See id. Interestingly, Petitioner never disputed the date of See

filing when the issue was first raised in Respondents' answer.

Answer (doc. # 9) at 5-7; Answer (doc. # 9A) Ex. N; Resp. (doc. # 12) at 1-4. Indeed, Petitioner accepted the factual background set

forth in the magistrate judge's Report and Recommendation ("R&R"), which indicated a filing date in October of 1998, not 1997, for his state petition. at 2-3. See Objections (doc. # 19) at 1; R&R (doc. # 18)

In view of these facts, it appears that Petitioner is

dissembling in belatedly disputing the issue on his present motion. II. CONCLUSION Petitioner's motion for reconsideration is untimely, and, in any event, fails to assert any grounds that would warrant relief under Rule 60(b). -3Document 29 Filed 12/04/2006

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Therefore, IT IS ORDERED that Petitioner's motion for reconsideration (doc. # 27) is DENIED. IT IS FURTHER ORDERED that Petitioner's motion for status (doc. # 28) is DENIED and dismissed as moot. DATED this 1st day of December, 2006.

Copies to counsel of record and Petitioner pro se

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