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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

LIONELL THOLMER,

Petitioner, No. CIV S-04-2491 FCD PAN P

vs.

C.M. HARRISON,

Respondent. 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.

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Case 2:04-cv-02491-FCD-EFB Document 55 Filed 08/17/06 Page 1 of 2
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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. 

DATED:August 17, 2006

/s/ Frank C. Damrell Jr. 

FRANK C. DAMRELL JR.

United States District Judge

Case 2:04-cv-02491-FCD-EFB Document 55 Filed 08/17/06 Page 2 of 2