Embry v. Guirbino

Filing 48

ORDER DENYING Certificate of Appealability, signed by District Judge Anthony W. Ishii on 11/17/17. (Martin-Gill, S)

Download PDF
1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 RAYVAUGHN ROYCE EMBREY, 7 8 9 CASE NO. 1:04-CV-6101 AWI JMD Petitioner, ORDER DENYING CERTIFICATE OF APPEALABILITY v. G.J. GUIRBINO, 10 Respondent. 11 12 13 On September 15, 2017, the Court denied Petitioner’s Rule 60(b)(6) motion. See Doc. No. 14 37. As part of that order, the Court stated that no motions for reconsideration would be 15 considered. See id. 16 17 On October 2, 2017, Petitioner filed a motion for reconsideration. See Doc. No. 38. On October 16, 2017, the Court denied the motion for reconsideration. See Doc. No. 46. 18 On November 16, 2017, the Ninth Circuit issued a limited remand for this Court to 19 determine whether a certificate of appealability pursuant to 28 U.S.C. § 2253 should issue with 20 respect to the September 2017 Rule 60(b) motion. See Doc. No. 47. The Court follows the Ninth 21 Circuit’s remand and makes the following analysis. 22 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 23 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 24 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether 25 to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 26 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 27 28 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. 1 2 3 (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from– 4 5 (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or 6 7 (B) the final order in a proceeding under section 2255. 8 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. 9 10 (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). 11 12 13 If a court denies a habeas petition on the merits, the court may only issue a certificate of 14 appealability “if jurists of reason could disagree with the district court’s resolution of [the 15 petitioner’s] constitutional claims or that jurists could conclude the issues presented are adequate 16 to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 17 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he must 18 demonstrate “something more than the absence of frivolity or the existence of mere good faith on 19 his . . . part.” Miller-El, 537 U.S. at 338. 20 In the context of a Rule 60(b) motion filed as part of 28 U.S.C. § 2255 petition, the Ninth 21 Circuit has held that a certificate of appealability should issue if the movant shows: (1) jurists of 22 reason would find it debatable whether the district court abused its discretion in denying the Rule 23 60(b) motion, and (2) jurists of reason would find it debatable whether the underlying petition 24 states a valid claim of the denial of a constitutional right. United States v. Winkles, 795 F.3d 25 1134, 1140 (9th Cir. 2015); Rodriguez v. Da Matt Greco, 2017 U.S. Dist. LEXIS 70100, *4-*6 26 (S.D. Cal. May 8, 2017); Sakellaridis v. Davey, 2017 U.S. Dist. LEXIS 8329, *4-*5 (E.D. Cal. 27 Jan. 19, 2017); De Adams v. Hedgpeth, 2016 U.S. Dist. LEXIS 101781, *34-*37 (C.D. Cal. June 28 8, 2016). 2 1 In the present case, the Court concludes that jurists of reason would not find it debatable 2 whether the district court abused its discretion in denying the Rule 60(b) motion. Therefore, the 3 Court will not issue a certificate of appealability. 4 5 6 7 ORDER Accordingly, IT IS HEREBY ORDERED that a certificate of appealability will not issue in this matter. 8 9 10 IT IS SO ORDERED. Dated: November 17, 2017 SENIOR DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?