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Terry v. Tilton

November 10, 2010

DAVID LEE TERRY, PETITIONER,
v.
JAMES TILTON, ET AL., RESPONDENTS.



FINDINGS AND RECOMMENDATIONS

On June 9, 2010, petitioner filed a second motion to vacate the judgment under Rule 60(b) of the Federal Rules of Criminal Procedure. He argues that two cases decided after this case was closed demonstrate he was entitled to equitable tolling, and he was entitled to equitable tolling because of restrictions on access to the law library.

I. Background

Petitioner was convicted on June 4, 1999, and sentenced to state prison. Document No. 1 lodged on September 26, 2006 (Doc. 1). The Court of Appeal affirmed his convictions on April 23, 2003, and the California Supreme Court denied review on July 16, 2003. Docs. 2 & 5.

Petitioner filed a state habeas petition in El Dorado County Superior Court on September 14, 2004.*fn1 Doc. 6. It was denied on October 14, 2004, as untimely. A motion for reconsideration was denied on November 23, 2004. Docs. 7 & 8.

Petitioner filed his next state petition on December 10, 2004, in the Court of Appeal, which denied it on December 22, 2004. Docs. 9 & 10. This was followed by a state habeas petition in the California Supreme Court, filed January 31, 2005, and denied on December 14, 2005. Docs. 11 & 12.

The federal petition was dated January 23, 2006, and was filed by this court on February 6, 2006. See Docket No. 1. It raised four issues: the prosecution knowingly used false evidence; the conviction was based on speculative evidence; the evidence on some counts was insufficient; and the prosecution withheld exculpatory information.

On September 26, 2006, respondent filed a motion to dismiss on the ground that the petition had been filed outside the statute of limitations. Petitioner opposed the motion, arguing that the Superior Court had improperly rejected his state habeas petition as untimely and that his mental health prevented his filing during the limitations period. Docket Nos. 10 & 18.

On August 22, 2007, this court recommended that respondent's motion to dismiss be granted and denied petitioner's request to amend the petition to add additional claims of ineffective assistance of counsel. Docket Nos. 17 & 24.

The district court adopted this recommendation on September 28, 2007, and entered judgment. Docket Nos. 26 & 27.

Petitioner filed a notice of appeal but the district court and the Court of Appeal each denied his request for the issuance of a certificate of appealability. Docket Nos. 28, 30, 35.

On December 15, 2008, petitioner filed a motion for relief from judgment, arguing again that the superior court erred in finding his initial state habeas petition to be untimely. Docket No. 37. The court denied this motion because petitioner's arguments had been or could have been made in opposition to the motion to dismiss. Docket No. 38.

Petitioner filed a notice of appeal from this order; once again, the District Court and the Court of Appeals each denied his request for a certificate of appealability. Docket Nos. 39, 41, 55.

Petitioner has now filed a second motion for relief from judgment. The court solicited an opposition from respondent ...


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