Jose Cardona v. Warden Lewisburg ( 2013 )

ALD-004 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-3172
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JOSE CRISTOBAL CARDONA,
Appellant
v.
WARDEN LEWISBURG
_____________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 4-10-cv-02269)
District Judge: Honorable James M. Munley
_____________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
October 10, 2013
Before: RENDELL, FISHER and GREENAWAY, JR., Circuit Judges
(Opinion filed: October 25, 2013)
1
_________
OPINION
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PER CURIAM
Jose Cardona, a federal prisoner proceeding pro se, appeals from the District
Court’s denial of his motion for relief from judgment pursuant to Federal Rule of Civil
Procedure Rule 60(b)(2). For the following reasons, we will summarily affirm.1
Cardona’s habeas petition, pursuant to 28 U.S.C. § 2241, was denied on July 6,
2011. Since then, he has attempted to reopen the judgment at least five times. This
appeal stems from his sixth unsuccessful attempt, filed on April 15, 2013. He relied on
Rule 60(b)(2), claiming that he had newly discovered evidence that would warrant relief
from the District Court’s order denying his habeas petition.
Motions brought under Rule 60(b)(2) must be filed “no more than a year after the
entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c).
Cardona’s motion was filed nearly two years after the entry of judgment, and the District
Court did not abuse its discretion in denying it as untimely. 2 See Brown v. Philadelphia
1
We have jurisdiction pursuant to 28 U.S.C. § 1291. We may summarily affirm the
decision of the District Court if no substantial question is presented on appeal. 3d Cir.
L.A.R. 27.4; I.O.P. 10.6.
2
As he did in the District Court, Cardona argues that his previous appeal to us tolled the
one-year deadline. As the District Court explained, (Dkt. No. 42, p. 4), it did not. See
Hancock Indus. v. Schaeffer, 811 F.2d 225, 239 (3d Cir. 1987). The District Court also
determined that Cardona’s motion was meritless, an issue we need not discuss, given its
untimeliness.
2
Hous. Auth., 350 F.3d 338, 342 (3d Cir. 2003). There being no substantial question
presented on appeal, we will summarily affirm.
3