Opinion
No. CIV-06-1749 MCE KJM P.
January 10, 2008
ORDER
Petitioner is a California prisoner proceeding with counsel with an application for writ of habeas corpus under 28 U.S.C. § 2254. On April 6, 2007 respondent filed a motion to dismiss this action as time-barred. In response to the motion to dismiss, petitioner filed an opposition, but also filed a motion under Rule 60(b) of the Federal Rules of Procedure asking that judgment be vacated in CIV-S-05-2262 LKK PAN P. In that case, petitioner challenged the same convictions and sentences at issue in this action. That case was dismissed because petitioner had not exhausted state court remedies with respect to all of his claims.
Petitioner fails to point to any authority indicating this court can vacate the judgment in CIV-S-05-2262 LKK PAN P through a Rule 60(b) motion. Therefore, petitioner's motion will be denied. However, petitioner will be given leave to file his motion in the correct action as it appears the questions raised in petitioner's Rule 60(b) motion could affect this court's determination of respondent's motion to dismiss.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's April 23, 2007 "motion to reinstate petition after dismissal" is denied without prejudice to refiling in CIV-S-05-2262 LKK PAN P within ten days of this order. The parties shall inform the court within ten days of the final resolution of petitioner's motion.
2. Respondent's April 6, 2007 motion to dismiss is denied without prejudice to renewal after resolution of petitioner's Rule 60(b) motion in CIV-S-05-2262 LKK PAN P.
3. This matter is stayed.
4. The Clerk of the Court is directed to administratively close this case.