UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
December 28, 2012
JIM HAMLET, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Dolly M. Gee United States District Judge
ORDER DISMISSING SECOND OR SUCCESSIVE HABEAS CORPUS PETITION AND DENYING CERTIFICATE OF APPEALABILITY
Before the Court is Petitioner's motion to set aside the Court's 2005 decision denying his habeas corpus petition. See Solomon v. Hamlet, CV 02-6913-GPS (PJW). Petitioner argues that he has discovered new evidence and asks the Court to vacate that decision pursuant to Federal Rule of Civil Procedure 60(b). For the following reasons, the motion is denied and the action is dismissed.
To the extent that Petitioner seeks reconsideration of the Court's prior ruling, his motion is denied as untimely. A rule 60(b) motion based on newly discovered evidence must be brought within one year of the entry of judgment. See Fed. R. Civ. Pro. 60(c)(1).
Construing Petitioner's motion as a new habeas petition, the Court finds that it is nevertheless subject to dismissal because it is second or successive. See 28 U.S.C. § 2244. Absent an order from the Ninth Circuit Court of Appeals, this Court does not have jurisdiction to entertain a second or successive petition. See 28 U.S.C. § 2244(3)(A). For this reason, the Petition is dismissed.
Further, the Court finds that, because Petitioner has not made a substantial showing of the denial of a constitutional right or that the Court erred in its procedural ruling, he is not entitled to a certificate of appealability. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000). IT IS SO ORDERED.
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