Order Denying Motions for Reconsideration and Certificate of Appealability

[ECF Nos. 30, 31]

JENNIFER A. DORSEY, District Judge.

On June 29, 2018, I granted respondents' motion to dismiss and dismissed pro se petitioner Delarian Wilson's 28 U.S.C. § 2254 habeas petition as untimely.1 Judgment was entered that same day.2 Wilson has now filed what he styled as a "composite" motion for certificate of appealability and a motion for reconsideration.3 I already denied Wilson a certificate of appealability. In my June 29, 2018, order, I concluded: "And because reasonable jurists would not find my decision to dismiss this seven-and-a-half-years-late petition as untimely to be debatable or wrong, I decline to issue a certificate of appealability."4 Wilson's request for one is therefore denied.

As for reconsidering my order, Federal Rule of Civil Procedure 60(b) allows the moving party to relief from judgment for "any . . . reason justifying relief. . . ."5 Relief under this catch-all provision requires "extraordinary circumstances."6 Rule 60(b) applies to habeas proceedings, but only in conformity with the Antiterrorism and Effective Death Penalty Act (AEDPA), including the limits on successive federal petitions.7 When a motion for reconsideration challenges the court's analysis and decision on the merits of a claim, then the motion "is in substance a successive habeas petition and should be treated accordingly."8 "Before a second or successive application . . . is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application."9 Where a petition has been dismissed with prejudice as untimely or because of procedural default, the dismissal constitutes a disposition on the merits and renders a subsequent petition second or successive for purposes of 28 U.S.C. § 2244.10

Wilson urges me to reconsider his timeliness issue. That argument is therefore properly construed as a second or successive petition.11 He must obtain authorization from the Ninth Circuit before he can proceed with a second or successive petition.12 Because he has not done so, Wilson's motion for reconsideration is denied. Reasonable jurists would not find this conclusion to be debatable or wrong, so I decline to issue a certificate of appealability for this holding.

Conclusion

Accordingly, IT IS HEREBY ORDERED that Wilson's motions for a certificate of appealability and reconsideration [ECF Nos. 30, 31] are DENIED.

IT IS FURTHER ORDERED that a certificate of appealability regarding any issue is DENIED as set forth in this order.