Opinion
No. C 98-04909 MHP
December 11, 2000
ORDER
On December 1, 1999, the court dismissed the habeas corpus petition of Glen William Nickerson, Jr. as untimely. Petitioner subsequently moved for reconsideration of the order and judgment on the basis of a change in law and newly discovered evidence. On September 14, 2000, the court granted petitioner's motion for reconsideration. Now before the court is respondent's motion to authorize an interlocutory appeal and petitioner's motion for release on his own recognizance.
Respondent's Motion to Authorize an Interlocutory Appeal
Respondent asks the court to authorize an interlocutory appeal of the question whether an actual innocence exception may be applied to the AEDPA's one-year statute of limitations. See Respondent's Motion at 2. A district judge may certify an immediate appeal of an order not otherwise appealable if the court is of the opinion "that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). The party seeking certification of the interlocutory appeal has the burden of showing that exceptional circumstances justify a departure from the basic policy of postponing review until after entry of final judgment. See In re Cement Antitrust Litigation, 673 F.2d 1020, 1026 (9th Cir. 1982) (citing Coopers Lybrand v. Livesay, 437 U.S. 463 (1989)).
Respondent has not satisfied its burden to show that exceptional circumstances exist to warrant the authorization of an interlocutory appeal. The court's finding in the September 14, 2000 order that petitioner made an adequate showing of actual innocence justifies equitable tolling, statutory tolling and the application of the actual innocence gateway to the one-year limitations period. See September 14, 2000 Order at 8, 10, 12 19. Consequently, respondent cannot show that an immediate appeal of the applicability of the actual innocence gateway will materially advance the ultimate termination of this litigation.
Petitioner's Motion for Release on his Own Recognizance
For the reasons stated on the record at the November 20, 2000 hearing, the court continues this motion until the next hearing, presently set for 3:00 p.m. on January 26, 2001.
Conclusion
The court DENIES respondent's motion to authorize an interlocutory appeal and CONTINUES petitioner's motion for release on his own recognizance.