IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 31, 2010
NABIL MANLEY, PETITIONER,
JAMES WALKER,*FN1 WARDEN, CALIFORNIA STATE PRISON, SACRAMENTO, RESPONDENT.
The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
[Re: Motion and Docket No. 32]
At Docket No. 32, petitioner, Nabil Manley, a state prisoner appearing pro se, has filed a motion under Federal Rule of Civil Procedure 60(b)(1), (4), (5), and (6) for relief from the judgment entered herein on July 5, 2007.*fn2 In his motion, Manley argues that under intervening decisions of the Ninth Circuit, he is entitled to equitable tolling during the entire period that his petitions for habeas corpus relief were pending in the California Courts.*fn3 Accordingly, Manley argues that this Court erred in holding that his petition was untimely and he is entitled to reconsideration.*fn4
II. PRIOR PROCEEDINGS
The record in this case shows that a Memorandum Decision and final judgment denying Manley's petition was entered on July 5, 2007. In its Memorandum Decision denying the petition, this Court held that the petition was untimely and, alternatively, Manley was not entitled to relief on the merits. Manley timely appealed to the Court of Appeals, Ninth Circuit, which denied a certificate of appealability on July 14, 2008. In his motion, Manley asserts that the Ninth Circuit denied his request for reconsideration and the Supreme Court denied certiorari. Manley also asserts that his application to file a successive petition for habeas corpus relief was denied by the Ninth Circuit. Although the proceedings subsequent to the denial of a certificate of appealability by the Ninth Circuit do not appear of record, for the purposes of ruling on the pending motion this Court accepts them as true.
This Court need not reach the merits of Manley's position. Even if this Court were to agree with Manley that this Court's decision on the issue of timeliness was erroneous, Manley would not prevail. At most, Manley is entitled to a decision on the merits,*fn5 which this Court has already addressed and Manley does not challenge in his motion.
IT IS THEREFORE ORDERED THAT the motion for reconsideration under Rule 60(b) is DENIED.
IT IS FURTHER ORDERED THAT this Court declines to issue a Certificate of Appealability.*fn6 Any further request for a Certificate of Appealability must be addressed to the Court of Appeals.*fn7