case, a reasonable jurist could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be allowed to proceed further."
Slack v. McDaniel, 529 U.S. 473, 485, 146 L. Ed. 2d 542, 120 S. Ct. 1595 (2000); see
Rodriguez v. Cowan, 2001 U.S. Dist. LEXIS 13967 (N.D. Ill. Aug 28, 2001). Here,
for the reasons stated above and in the court’s Memorandum Opinion dismissing
Spaulding’s habeas petition, Spaulding’s petition is procedurally barred pursuant to
28 U.S.C. § 2244(d)(1). Because his petition is procedurally barred under the AEDPA
statute, there is no constitutional question that can support a certificate of appealability.
Therefore, his motion for a certificate of appealability is denied.
CONCLUSION
For the foregoing reasons, Spaulding’s motion for reconsideration and his

motion for a certificate of appealability are denied.

Charles P. Kocoras
United States District Judge

Dated: _September 26, 2001


federal court. Freeman v. Page, 208 F.3d 572, 575 (7th Cir. 2000); Fernandez v.
Sternes, 227 F.3d 977, 978 (7th Cir. 2000); Draper v. Page, 2000 WL 876139, at *4
(NLD. Ill. June 28, 2000). Accordingly, based on the state court’s treatment of
Spaulding’s petition for post-conviction relief, his petition was not properly filed and,
therefore, did not toll the one-year statute of limitations period for habeas petitions.
Our decision remains unchanged.
IL. Motion for Certificate of Appealability.

Alternatively, Spaulding moves this court for a certificate of appealability from
our denial of his petition for writ ofhabeas corpus. Pursuant to 28 U.S.C. § 2253(c)(1),
no appeal may be taken from the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court unless a circuit
justice or judge issues a certificate of appealability. A certificate of appealability under
this section may issue only if the applicant has made a substantial showing of the denial
of a constitutional right. 28 U.S.C. § 2253(c)(2). The test is whether the questions the
petitioner presents are “debatable among jurists of reason,” that a court could resolve
the matter differently, or that the questions are deserving of further encouragement.
Barefoot v. Estelle, 463 U.S. 880, 893 n. 4. (1983).

Spaulding has not met this standard. Whether a given petition is timely is a
question under 28 U.S.C. § 2244 and not under the Constitution. Therefore, an error
in treating a collateral attack as untimely cannot support a certificate of appealability.

Owens v. Boyd, 235 F.3d. 356, 358 (7th Cir. 2000); Ramunno v. United States, 2001

LEXIS U.S. App. 19601 (7th Cir. Sept. 4, 2001). Additionally, “where a plain

procedural bar is present and the district court is correct to invoke it to dispose of the

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‘Minute Order Form (06/97)

United States District Court, Northern District of Minois

Name of Assigned Judge Charles P. Kocoras Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 3250 DATE 9/26/2001
CASE US ex rel. Anthony Spaulding vs. Warden Kenneth Briley
TITLE
[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
( o Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due
(3) a Answer brief to motion due. . Reply to answer brief due.
(4) i) Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for at -
(7) o Trial[set for/re-set for] on at
(8) Oo (Bench/Jury trial] [Hearing] held/continued to at
(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) (General Rule 21 CIFRCP41(a)(1)  FRCP41(a)(2).
(10) Ml [Other docket entry] ENTER MEMORANDUM OPINION: Spaulding’s motion (Doc 20-1) for
reconsideration and his motion (Doc 20-2) for a certificate of appealability are denied.
(1) ff [For further detail see order atachedto the original minute order.]

No notices required, advised in open court.

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

vo | Docketing to mail notices.

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Mail AO 450 form.

Copy to judge(magistrate judge, eh GL ies

tet
aad t date mailed notice

courtroom q
deputy’s
initials

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Date/time received in

central Clerk’s Office mailing deputy initials



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA ex rel., )
ANTHONY SPAULDING, )
Petitioner, }
vs. 01 € 3250
WARDEN KENNETH BRILEY,
Respondent. ‘ DoeK ETED
SEP 2 7 2n94
MEMORANDUM OPINION

CHARLES P. KOCORAS, District Judge:

This matter comes before the court on Anthony Spaulding’s motion to reconsider
our August 24, 2001 dismissal of his petition for a writ of habeas corpus as time-
barred. In the alternative, Spaulding moves the court for a certificate of appealability.

For the following reasons, both motions are denied.

DISCUSSION
We will first discuss Spaulding’s motion to reconsider and then his motion for
a certificate of appealability, The factual background for this case can be found in our
prior opinion. United States of America ex rel. Spaulding v. Briley, 2001 WL 1001161
(N.D. Ill. August 24, 2001).
L Motion to Reconsider — Rule 60(b).
Relief under Rule 60(b) is "an extraordinary remedy that is to be granted only

in exceptional circumstances." Provident Savings Bank v. Popovich, 71 F.3d 696, 698

qu


(7th Cir. 1995). A district court may, in its sound discretion, grant relief under a Rule
60(b) motion for reconsideration for a number of reasons, including "mistake,
inadvertence, surprise, or excusable neglect, fraud, misrepresentation or other
misconduct by an adverse party, or for any other reason justifying relief judgment."

Tobel v. City of Hammond, 94 F.3d 360, 361 (7th Cir. 1996); Helm v. Resolution Trust

Corp., 84 F.3d 874, 877 (7th Cir. 1996). Relief under Rule 60(b), however, is
warranted "only upon a showing of extraordinary circumstances that create a
substantial danger that the underlying judgment was unjust." Dickerson v. Bd. of Educ.
of Ford Heights, Ill. 32 F.3d 1114, 1116 (7th Cir.1994).

The basis of Spaulding’s motion to reconsider is that the court did not read his
response brief to Respondent’s motion to dismiss his petition for writ of habeas corpus.
Indeed, the court did not receive Spaulding’s response to Respondent’s motion until the
day the court issued the opinion. Having now read Spaulding’s response, however, we
find that it does not change our conclusion that his application for collateral relief was
not properly filed pursuant to 28 U.S.C. § 2244(d)(2) and thus did not toll the one year
statute of limitations period that applies to petitions for writ of habeas corpus. See 28
U.S.C. § 2244(d)(1).

In his response brief, Spaulding argues that this court should find that his
application for collateral relief was properly filed because the state court incorrectly
concluded that his petition for post-conviction relief was untimely. As explained in this
court’s Memorandum Opinion dismissing his habeas petition, federal review on this
issue is foreclosed. State courts’ decisions as to whether a petition for post-conviction

relief is properly filed constitutes a matter of state law that is binding on the reviewing

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