ORDER DENYING A CERTIFICATE OF APPEALABILITY
The Ninth Circuit has now had seven occasions to review the validity of defendant Michael L. Montalvo's sentence, see United States v. Montalvo, 581 F.3d 1147, 1148 (9th Cir. 2009), and this court has considered four times the denial of Montalvo's Federal Rule of Civil Procedure 60(b) motion. Upon the Order of Appellate Commissioner Peter L. Shaw, this case was remanded for the limited purpose of granting or denying a certificate of appealability ("COA").
Montalvo's first motion sought relief from the final judgment of his habeas proceeding pursuant to Rule 60(b), and his four subsequent motions sought reconsideration of the court's denial of that motion. Pursuant to Lynch v. Blodgett, 999 F.2d 401, 403 (9th Cir. 1993), a COA is required in order to appeal from the denial of a Rule 60(b) motion that sought relief from the judgment of a previous habeas proceeding.
Under Slack v. McDaniel, 529 U.S. 473 (2000), a COA should issue "when the prisoner shows, at least, that [(1)] jurists of reason would find it debatable whether the [motion] state[d] a valid claim of the denial of a constitutional right and that [(2)] jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. at 484.
In the original Order denying the Rule 60(b) motion, the court held that it lacked the authority to rule that the Ninth Circuit in United States v. Montalvo, 331 F.3d 1052 (9th Cir. 2003) (per curiam), did not have jurisdiction to consider whether the failure to instruct the jury in accordance with United States v. Richardson, 526 U.S. 813 (1999), was harmless error. See United States v. Montalvo, Nos. CIV. 97-2015, CR. 89-062, 2008 WL 4937624, at *1 (E.D. Cal. Nov. 17, 2008) (Docket No. 1057). In the court's third order denying reconsideration, the court held that, "although the Ninth Circuit's recent decision in Phelps v. Alameida, 569 F.3d 1120 (9th Cir. 2009), has led the court to question part of the analysis in its November 17, 2008 Order, the court will nonetheless deny defendant's motion for reconsideration because Greenlaw v. United States, 128 S. Ct. 2559 (2008), does not present an intervening change in the law governing defendant's case." United States v. Montalvo, No. CR. 89-62, 2009 WL 2591356, at *4 (E.D. Cal. Aug. 21, 2009) (Docket No. 1072); see Phelps, 569 F.3d at 1133 (holding that subsequent changes in governing law could provide relief pursuant to Rule 60(b)(6) based on a "case by case inquiry"); Greenlaw, 128 S. Ct. at 2564 ("Under that unwritten but longstanding rule, an appellate court may not alter a judgment to benefit a nonappealing party. . . . [I]t takes a cross-appeal to justify a remedy in favor of an appellee.").
In the fourth order denying reconsideration, the court rejected Montalvo's argument that the court had committed clear error in its third order denying reconsideration in applying Greenlaw. See United States v. Montalvo, No. Cr. 89-62, 2009 WL 3157540, at *1 (E.D. Cal. Sept. 25, 2009) (Docket No. 1076). The court also rejected Montalvo's challenge to the court's analysis of Richardson because Montalvo did not point to intervening authority following the Ninth Circuit deciding that failure to give a Richardson instruction was harmless error and that defendant's challenge to his conviction failed on the merits. Id. at *2 (citing Montalvo, 331 F.3d 1052; Montalvo, 581 F.3d 1147).
The court has reviewed Montalvo's motions and concludes that "jurists of reason" would not "find it debatable" that this court lacked the authority to rule that the Ninth Circuit did not have jurisdiction or that Montalvo was not entitled to relief pursuant to Rule 60(b)(6).
Accordingly, the court will not grant the COA. The Clerk of this court is directed to send a copy of this Order to the Clerk of the United States Court of Appeals for the Ninth Circuit.
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