Opinion
No. 05-35680.
Argued and Submitted April 9, 2007.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed April 17, 2007.
Greg S. Silvey, Esq., Boise, ID, for Petitioner-Appellant.
Harvey L. Samuelson, Jr., Boise, ID, pro se.
L. Lamont Anderson, Esq., Office of the Idaho Attorney General, Boise, ID, for Respondent-Appellee.
Appeal from the United States District Court for the District of Idaho, Mikel H. Williams, Magistrate Judge, Presiding. D.C. No. CV-03-00183-MHW.
Before: KOZINSKI, FISHER and TALLMAN, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Harvey L. Samuelson, Jr. appeals the district court's dismissal of his habeas corpus petition as untimely and the district court's subsequent denial of his Rule 60(b)(6) motion for relief from judgment. Because Samuelson did not appeal the district court's original statute of limitations ruling within the period prescribed by Federal Rule of Appellate Procedure 4(a), we lack jurisdiction over the question presented in the certificate of appealability ("COA"). See United States v. Sadler, 480 F.3d 932, 935-38 (9th Cir. 2007).
Nonetheless, we grant Samuelson's request to expand the COA to encompass whether the district court abused its discretion in failing to grant Samuelson's motion pursuant to Rule 60(b)(6). With regard to that question, we hold that the district court did not abuse its discretion, because Samuelson has not demonstrated that "extraordinary circumstances prevented [him] from taking timely action to prevent or correct" the judgment. Hamilton v. Newland, 374 F.3d 822, 825 (9th Cir. 2004) (quoting Greenawalt v. Stewart, 105 F.3d 1268, 1273 (9th Cir. 1997)) (alteration in original). There was no "change of circumstances between the time when [he] filed his habeas petition and the time when he filed his 60(b) motion" that justifies relief. Id. Nor has Samuelson provided any colorable evidence proving that he is actually innocent of the offense of conviction. Finally, to the extent Samuelson's Rule 60(b)(6) motion attempted to "assert, or reassert, claims of error in [his] state conviction," we cannot consider them. See Gonzalez v. Crosby, 545 U.S. 524, 538, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005).
AFFIRMED.