1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CLIFFORD DILBERT, Case No. 10-cv-03396-SI

8 Petitioner, ORDER DENYING THIRD RULE 60 9 v. MOTION

10 M. MARTEL, Re: Dkt. No. 27 11 Respondent.

12 13 This action for writ of habeas corpus was dismissed on June 20, 2011 because the petition 14 was barred by the statute of limitations. This court and the Ninth Circuit denied a certificate of 15 appealability. Petitioner’s first motion for relief from the judgment under Federal Rule of Civil 16 Procedure 60(b) was denied on July 6, 2011. (Docket No. 11.) Petitioner’s second Rule 60(b)(6) 17 motion was denied on June 27, 2014. (Docket No. 26.) The case returns for the court's attention 18 because petitioner has filed a third Rule 60(b)(6) motion. (Docket No. 27.) 19 Rule 60(b)(6) is a “catchall provision” allows relief for “any other reason that justifies relief” 20 and applies only when the reason for granting relief from a judgment is not covered by any of the 21 other reasons specified in Rule 60(b)(1-5). See Jones v. Ryan,

(9th Cir. 2013). 22 The movant “must show ‘extraordinary circumstances’ justifying the reopening of a final 23 judgment.”

(citation omitted). 24 Relief under the catch-all provision of Rule 60(b)(6) is not warranted here. The argument is 25 just a rehash of an argument previously made and rejected in the July 6, 2011 order denying the first 26 Rule 60(b) motion. Although petitioner offers new district court cases in support of his argument, 27 the fact remains that the procedural default argument he makes is irrelevant to the statute of 1 additional reason that the motion was not made within a reasonable time. See Fed. R. Civ. P. 2 60(c){1) Gmotion under Rule 60(b)(4-6) must be filed “within a reasonable time”). The motion for 3 || relief from the judgment is DENIED. (Docket No. 27.) 4 A certificate of appealability will not issue. See

(c). This is not a case in 5 which “jurists of reason would find it debatable whether the petition states a valid claim of the denial 6 || of a constitutional right and that jurists of reason would find it debatable whether the district court 7 was correct in its procedural [rulings]” in the Order Of Dismissal or in this order. Slack v. McDaniel, 8

(2000). The denial of the certificate of appealability is without prejudice to 9 || petitioner seeking a certificate from the United States Court of Appeals for the Ninth Circuit. 10 IT IS SO ORDERED. 11 Dated: June 9, 2020 Site WU tee

SUSAN ILLSTON 13 United States District Judge © 15 16

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