Dema v. Campanero et al

Filing 14

ORDER that Petitioner's implied request for a COA 7 is DENIED. Signed by Judge David G Campbell on 6/20/11. (TLJ)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Victor O’Neil Dema, 10 Petitioner, 11 vs. 12 Campanero, et al., 13 Respondents. ) ) ) ) ) ) ) ) ) ) No. CV 11-347-PHX-DGC (LOA) ORDER 14 15 Petitioner’s habeas appeal was remanded by the Ninth Circuit for the limited purpose 16 of granting or denying a Certificate of Appealability (“COA”). Doc. 12. Petitioner’s habeas 17 petition was dismissed without prejudice for failing to comply with court rules and 18 instructions, and Petitioner was granted leave to file an amended petition within 30 days of 19 the order. Doc. 6. Petitioner filed an interlocutory appeal before the expiration of the 30-day 20 amendment period (Doc. 7), and did not file an amended petition. After the expiration of the 21 amendment period, the Clerk entered judgment dismissing the case without prejudice. 22 Doc. 11. Petitioner has not appealed that judgment. Although 28 U.S.C. § 2253(c) requires 23 COAs only for final orders, and the appeal in this case was an interlocutory appeal (Doc.7), 24 the Court assumes in light of remand instructions that this Court has the power to issue a 25 COA under 28 U.S.C. § 2253(c) for interlocutory appeals. 26 “A certificate of appealability may issue under paragraph (1) only if the applicant 27 has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 28 1 2253(c)(2). A petitioner meets the criteria of § 2253(c)(2) by showing that “reasonable 2 jurists could debate whether (or, for that matter, agree that) the petition should have been 3 resolved in a different manner or that the issues presented were ‘adequate to deserve 4 encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting 5 Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). A dismissal on procedural grounds does 6 not necessarily preclude a COA from issuing. See id. at 483 (“In setting forth the 7 preconditions for issuance of a COA under § 2253(c), Congress expressed no intention to 8 allow trial court procedural error to bar vindication of substantial constitutional rights on 9 appeal.”). Where a procedural dismissal occurred, however, “a COA should issue when the 10 prisoner shows, at least, that jurists of reason would find it debatable whether the petition 11 states a valid claim of the denial of a constitutional right and that jurists of reason would find 12 it debatable whether the district court was correct in its procedural ruling.” Id. at 484 13 (emphasis added). “Where a plain procedural bar is present and the district court is correct 14 to invoke it to dispose of the case, a reasonable jurist could not conclude either that the 15 district court erred in dismissing the petition or that the petitioner should be allowed to 16 proceed further. In such a circumstance, no appeal would be warranted.” Id. 17 Pro se plaintiffs are expected to abide by the rules of the court in which they litigate. 18 Carter v. Comm’r of Internal Revenue, 784 F.2d 1006, 1008 (9th Cir. 1986). Moreover, a 19 prisoner attacking his or her state conviction must exhaust state remedies before a federal 20 court will entertain a petition for writ of habeas corpus. Rose v. Lundy, 455 U.S. 509 (1982); 21 Szeto v. Rushen, 709 F.2d 1340 (9th Cir. 1983). The federal court will not entertain a petition 22 for writ of habeas corpus unless each and every issue has been exhausted. Rose, 455 U.S. 23 at 521-22. The failure to exhaust subjects a petitioner to dismissal. Gutierrez v. Griggs, 695 24 F.2d 1195 (9th Cir. 1983). 25 The Court found that Petitioner has not substantially complied with court rules for 26 purported claims 5 through 20. Doc. 6 at 2. Therefore, dismissal without prejudice of these 27 purported claims on procedural grounds was proper, and the Court finds that jurists of reason 28 would not disagree. -2- 1 Dismissal of claims 1 through 4 without prejudice and with leave to amend was also 2 proper for two independent reasons. First, Petitioner likely intended all twenty claims be 3 reviewed, and permitting Petitioner to properly file all claims is judicially efficient. See Rule 4 2(c)(1), Rules Governing Section 2254 Cases in the United States District Courts (stating that 5 a petition must specify all grounds on which relief is available to petitioner). Second, the 6 petition stated that claims 1 through 4 were not presented before the Arizona Court of 7 Appeals (Doc. 1 at 6-9), thereby facially indicating that Petitioner has not exhausted the 8 claims in state court as required.1 See Rose, 455 U.S. at 521-22. The Court gave Petitioner 9 an opportunity to “provide information as to how he has first exhausted his administrative 10 remedies as to each and every claim” in an amended petition, an opportunity that Petitioner 11 declined to seize. For these reasons, the Court finds that jurists of reason would not disagree 12 with the Court’s procedural disposition of claims 1 through 4. 13 In light of the above, the Court will deny Petitioner’s implied request for a COA.2 14 IT IS ORDERED that Petitioner’s implied request for a COA (Doc. 7) is denied. 15 DATED this 20th day of June, 2011. 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The Court’s statement that “Petitioner affirmatively alleges that the issues raised in all four grounds were presented to the Arizona Supreme Court” (Doc. 6 at 2) does not constitute a finding that the issues were exhausted. The Court specifically stated later in the order that the amended petition “must also provide information as to how he has first exhausted his administrative remedies as to each and every claim.” Id. at 3. 2 A notice of appeal is deemed a request for a COA where a petitioner fails to otherwise make an express request. United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). -3-

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