IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 28, 2013
VASILIY POPOV, PETITIONER,
M. MARTEL, RESPONDENT.
The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
Popov, a state prisoner proceeding pro se and in forma pauperis, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On July 26, 2010, the previously assigned magistrate judge dismissed the petition as untimely. (Dkt. No. 23.) Both this court and the United States Court of Appeals for the Ninth Circuit denied petitioner's request for a certificate of appealability.
On September 10, 2012, petitioner filed a motion requesting the court to vacate the July 26, 2010 order dismissing his petition pursuant to Fed. R. Civ. P. 60(b). The motion was denied on October 1, 2012. (Dkt. No. 35.) Petitioner has appealed to the Ninth Circuit, which has remanded the case for the limited purpose of granting or denying a certificate of probable cause. See Lynch v. Blodgett, 999 F.2d 401, 403 (9th Cir. 1993) (holding that a certificate of probable cause to appeal is necessary to appeal the denial of a post-judgment motion for relief under Rule 60(b)).
A certificate of probable cause to appeal the denial of a Rule 60(b) motion should issue only if petitioner "has made a substantial showing that the district court abused its discretion by denying the Rule 60(b) motion." Lynch, 999 F.2d at 403. Petitioner has not done so. His Rule 60(b) motion failed to present newly discovered evidence demonstrating that the petition should not have been dismissed as untimely. In addition, dismissal of the case for untimeliness was neither manifestly unjust nor clearly erroneous.
For these reasons, IT IS HEREBY ORDERED that a certificate of probable cause shall not issue in regard to the court's October 1, 2012 order. (Dkt. No. 35.)
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