Hernandez v. Thaler, No. 10-50319 - U.S. Fifth Circuit
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Hernandez v. Thaler, No. 10-50319

Aggravated Robbery Prosecution

In Hernandez v. Thaler, No. 10-50319, an aggravated robbery prosecution, the court denied  petitioner's motion for a certificate of appealability of the denial of his habeas petition where petitioner could not use Rule 60(b)(6) to circumvent the principle that, when the Supreme Court announces a new rule of law and applies it to the parties before it, the new rule was given retroactive effect only in cases that are still open on direct review.

 

As the court wrote:  "In substance, petitioner-appellant Alfred Hernandez seeks a certificate of appealability (a "COA") granting him permission to appeal the district court's denial of his motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(6).   The judgment in question applied the then-controlling rule of Salinas v. Dretke 1 and dismissed Hernandez's habeas petition as barred by limitations.   Hernandez argues that if the district court had applied the rule announced in Jimenez v. Quarterman,2 it would have determined that his petition was timely filed.

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