Kevin Phelps v. Edward Alameda, Warden, Duel Vocational Institution, Tracy, California People of the State of California Ex Rel. Bill Lockyer

We must decide whether we should vacate, as improvidently granted, a Certificate of Appealability issued by a motions panel pursuant to the Antiterrorism and Effective Death Penalty Act.

I

Kevin Phelps was convicted of first degree murder in a California state court in 1995 and has exhausted all relevant state remedies. On May 15, 1998, he filed a habeas corpus petition in the Northern District of California one year and fifteen days after the California Supreme Court declined to review a previous denial of state habeas corpus relief. The district court denied the petition based upon its having been lodged more than a year after his state post-conviction relief process ended. See 28 U.S.C. § 2244 (d). On appeal, we affirmed in an unpublished disposition. See Phelps v. Alameda, No. 99-15495, 2000 WL 329180 (9th Cir. Mar. 29, 2000).

Two years later, Phelps filed a motion under Federal Rule of Civil Procedure 60(b)(5) with the same district court, seeking reconsideration of the earlier denial of his petition for writ of habeas corpus. He argued that Bunney v. Mitchell, 262 F.3d 973 (9th Cir.2001), among other cases, effected an intervening change in the law suggesting that his…