Opinion
No. CIV S-04-2491 FCD PAN P.
August 17, 2006
ORDER
Petitioner is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. On March 9, 2006, this court adopted in full findings and recommendations filed in this action on November 23, 2005, granted respondent's motion to dismiss as to all claims raised in this action except petitioner's claim of juror misconduct, and directed respondent to file a response to that claim within thirty days. On June 7, 2006, affirmed on reconsideration an order of the magistrate judge disposing of various motions for protective order, evidentiary hearing, and stay filed by petitioner. On June 26, 2006, petitioner filed a document styled "Motion for Recall of Mandate, or Alternatively Request for Certificate of Appealability." That document was treated as a notice of interlocutory appeal and processed to the United States Court of Appeals for the Ninth Circuit, where it is pending as Case No. 06-16204. On July 3, 2006, petitioner filed in this court a supplement to his June 26, 2006 motion.
By the June 26, 2006 motion and the July 3, 2006 supplement thereto, it appears that petitioner seeks either reconsideration by this court of its March 9, 2006 and June 7, 2006 orders or issuance of a certificate of appealability to permit an appeal from those orders. A certificate of appealability is only available, if at all, from a final judgment in a habeas corpus action. See 28 U.S.C. § 2253(c). There has been no final judgment entered in this action, and it does not appear that either of the orders contested by petitioner are appealable at this stage of these proceedings. Cf. 28 U.S.C. §§ 1291, 1292. Petitioner's request for a certificate of appealability will therefore be denied.
For the reasons set forth in the November 23, 2005 findings and recommendations and this court's March 9, 2006 order, the instant petition was filed well after expiration of the applicable statute of limitations, and petitioner has only raised a cognizable contention that he is entitled to equitable tolling of the limitation period with respect to one of those claims. Petitioner's June 26, 2006 motion is grounded in arguments raised in his January 13, 2006 objections to the November 23, 2005 findings and recommendations. The court has already considered and rejected those arguments in its de novo review of the record in connection with adoption of the findings and recommendations. Petitioner's request for reconsideration by this court of the March 9, 2006 and June 7, 2006 orders will be denied.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner's June 26, 2006 motion for recall of the mandate or, in the alternative, for issuance of a certificate of appealability is denied.
2. The Clerk of the Court is directed to serve a copy of this order on the United States Court of Appeal for the Ninth Circuit in regard to Court of Appeals Case No. 06-16204.