                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 24 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DENNIS PATRICK MCKNIGHT,                         No. 08-17488

             Petitioner - Appellant,             D.C. No. 2:05-cv-02262-LKK-
                                                 EFB
  v.

DWIGHT W. NEVEN,** Warden, High                  MEMORANDUM *
Desert State Prison,

             Respondent - Appellee.



                   Appeal from the United States District Court
                      for the Eastern District of California
                  Lawrence K. Karlton, District Judge, Presiding

                          Submitted February 12, 2010 ***
                            San Francisco, California

Before: O’SCANNLAIN, TROTT and PAEZ, Circuit Judges.




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Circuit Rule 36-3.
       **
            Dwight W. Neven is substituted for his predecessor, Tom Felker, as
Warden, High Desert State Prison, pursuant to Federal Rule of Appellate
Procedure 43(c)(2).
       ***
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
      In 2005, Dennis McKnight filed a petition for writ of habeas corpus in

federal district court. On July 5, 2006, the district court dismissed McKnight’s

petition without prejudice because it contained both unexhausted and exhausted

claims. On January 17, 2008, McKnight filed a motion under Federal Rule of Civil

Procedure 60(b), requesting relief from the dismissal of his habeas petition. The

district court held that the motion was “jurisdictionally barred” under Rule 60(c)(1)

because it was filed more than one year after the entry of judgment. McKnight

timely appeals, arguing that his motion should have been treated as timely.

      McKnight concedes that the one-year limit set forth in Rule 60(c)(1) governs

the timeliness of his Rule 60(b) motion, and that he filed his motion more than one

year after the entry of judgment. He contends, however, that the district court

erred in construing the one-year limit as a “jurisdictional” requirement. He further

contends that because the one-year limit is not “jurisdictional,” the district court

erred in concluding that it lacked discretion to treat his motion as timely. We

disagree.




                                           2
      Federal Rule of Civil Procedure 6(b)(2) expressly provides that “[a] court

must not extend the time to act under [Rule] 60(b).”1 Thus, regardless of whether

the one-year limit is “jurisdictional,” it must be strictly enforced. Given the plain

meaning of Rule 6(b)(2), the district court did not err in concluding that it lacked

discretion to bend the one-year limit to treat McKnight’s Rule 60(b) motion as

timely. The district court properly held that his motion was time-barred under Rule

60(c)(1). Accordingly, the judgment of the district court is

      AFFIRMED.




      1
              Rule 6(b)(2) was recently amended, but the amendment did not
change the substance of the rule. Former Rule 6(b)(2) provided: “A court must not
extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and
60(b), except as those rules allow.” As amended on December 1, 2009, Rule
6(b)(2) provides: “A court must not extend the time to act under Rules 50(b) and
(d), 52(b), 59(b), (d), and (e), and 60(b).” The clause “except as those rules allow”
was deleted as “meaningless,” because none of the rules listed—including Rule
60(b)—allowed the court to extend the time to act. Report of the Civil Rules
Advisory Committee, May 25, 2007 (rev. June 29, 2007), at 14, available at
http://www.uscourts.gov/rules/proposed0807/CV_TC_Memo_5_25_07.pdf.
Because the substance of Rule 6(b)(2) was not changed, we find it “just and
practicable” to apply the amended version of the rule here, and thus do so. Order,
2009 U.S. Order 17 (Mar. 26, 2009) (“[T]he foregoing amendments to the Federal
Rules of Civil Procedure shall take effect on December 1, 2009, and shall govern
in all proceedings thereafter commenced and, insofar as just and practicable, all
proceedings then pending.”).

                                           3
