Embry v. Guirbino

Filing 48

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

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAYVAUGHN ROYCE EMBREY,

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CASE NO. 1:04-CV-6101 AWI JMD

Petitioner,
ORDER DENYING CERTIFICATE OF
APPEALABILITY

v.
G.J. GUIRBINO,

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Respondent.

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On September 15, 2017, the Court denied Petitioner’s Rule 60(b)(6) motion. See Doc. No.

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37. As part of that order, the Court stated that no motions for reconsideration would be

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considered. See id.

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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.

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On November 16, 2017, the Ninth Circuit issued a limited remand for this Court to

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determine whether a certificate of appealability pursuant to 28 U.S.C. § 2253 should issue with

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respect to the September 2017 Rule 60(b) motion. See Doc. No. 47. The Court follows the Ninth

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Circuit’s remand and makes the following analysis.

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A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a

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district court’s denial of his petition, and an appeal is only allowed in certain circumstances.

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Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether

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to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:

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(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.

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(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.

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(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–

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(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

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(B) the final order in a proceeding under section 2255.

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(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.

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(3) The certificate of appealability under paragraph (1) shall
indicate which specific issue or issues satisfy the showing
required by paragraph (2).

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If a court denies a habeas petition on the merits, the court may only issue a certificate of

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appealability “if jurists of reason could disagree with the district court’s resolution of [the

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petitioner’s] constitutional claims or that jurists could conclude the issues presented are adequate

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to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529

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U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he must

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demonstrate “something more than the absence of frivolity or the existence of mere good faith on

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his . . . part.” Miller-El, 537 U.S. at 338.

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In the context of a Rule 60(b) motion filed as part of 28 U.S.C. § 2255 petition, the Ninth

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Circuit has held that a certificate of appealability should issue if the movant shows: (1) jurists of

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reason would find it debatable whether the district court abused its discretion in denying the Rule

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60(b) motion, and (2) jurists of reason would find it debatable whether the underlying petition

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states a valid claim of the denial of a constitutional right. United States v. Winkles, 795 F.3d

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1134, 1140 (9th Cir. 2015); Rodriguez v. Da Matt Greco, 2017 U.S. Dist. LEXIS 70100, *4-*6

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(S.D. Cal. May 8, 2017); Sakellaridis v. Davey, 2017 U.S. Dist. LEXIS 8329, *4-*5 (E.D. Cal.

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Jan. 19, 2017); De Adams v. Hedgpeth, 2016 U.S. Dist. LEXIS 101781, *34-*37 (C.D. Cal. June

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8, 2016).
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In the present case, the Court concludes that jurists of reason would not find it debatable

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whether the district court abused its discretion in denying the Rule 60(b) motion. Therefore, the

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Court will not issue a certificate of appealability.

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ORDER
Accordingly, IT IS HEREBY ORDERED that a certificate of appealability will not issue
in this matter.

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IT IS SO ORDERED.
Dated: November 17, 2017
SENIOR DISTRICT JUDGE

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