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Hebert v. Marshall

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 6, 2010

ROBERT A. HEBERT, PETITIONER,
v.
JOHN MARSHALL, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Gregory G. Hollows United States District Judge

ORDER

On September 14, 2009, the undersigned granted respondent's motion to dismiss on grounds that this action is barred by the statute of limitations. Pending before the court is petitioner's November 2, 2009, motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b).

Petitioner's motion for relief from judgment objects to several findings contained in the November 2, 2009, order. Petitioner argues that the undersigned mistakenly found that he is not entitled to equitable tolling, that his actual innocence excuses any untimeliness, and that he is entitled to greater statutory tolling than found. The court has reviewed petitioner's arguments and finds that they are without merit.

On November 18, 2009, petitioner filed a notice of appeal. Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The certificate of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. § 2253(c)(3).

A certificate of appealability should be granted for any issue that petitioner can demonstrate is "'debatable among jurists of reason,'" could be resolved differently by a different court, or is "'adequate to deserve encouragement to proceed further.'" Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).*fn1

Petitioner has made a substantial showing of the denial of a constitutional right in the following issues presented in the instant petition: whether this action is barred by the statute of limitations.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's motion for relief from judgment (no. 26) is denied;

2. A certificate of appealability is issued in the present action.


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