Pack v. Barnes

Filing 48

ORDER ADOPTING 46 Findings and Recommendations, DENYING 44 Rule Motion, and DECLINING to Grant a Certificate of Appealability, signed by District Judge Dale A. Drozd on 8/17/17. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN ANTHONY PACK,

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Petitioner,
v.
SCOTT FRAUENHEIM,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS, DENYING RULE 60
MOTION, AND DECLINING TO GRANT A
CERTIFICATE OF APPEALABILITY

Respondent.
(Doc. Nos. 44, 46)

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No. 1:13-cv-00585-DAD-SKO

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. On January 17, 2017, the undersigned adopted findings and

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recommendations recommending that the petition be denied and directed the case to be closed.

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(Doc. No. 41.) Judgment was issued accordingly. (Doc. No. 42.) On May 5, 2017, petitioner

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moved for relief from judgment under Federal Rule of Civil Procedure 60(b)(1), contending that

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the judgment should be vacated because petitioner’s failure to file timely objections was

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attributable to excusable neglect. (Doc. No. 44.) In the alternative, petitioner maintained that his

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failure to timely file objections was due to extraordinary circumstances under Federal Rule of

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Civil Procedure 60(b)(6). (Id.)

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On May 30, 2017, the assigned magistrate judge issued findings and recommendations

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recommending that the undersigned deny the motion for relief from judgment and decline to issue

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a certificate of appealability. (Doc. No. 44.) The findings and recommendations, which were
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served on all parties on the same date, provided that objections thereto could be served within

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thirty days and replies within fourteen days after the filing of any objections. Neither party has

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filed objections, and the time in which to do so has since passed.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), having carefully reviewed

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the entire file de novo and considered petitioner’s objections, the undersigned concludes that the

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findings and recommendations are supported by the record and proper analysis. While the

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undersigned understands the practical difficulties of litigating while one is in prison, here

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petitioner was granted two extensions of time to file objections to the findings and

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recommendations which recommended dismissal of his petition. Moreover, the order adopting

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that recommendation was not adopted until almost four weeks after petitioner’s third request for

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an extension of time to file objections was denied and yet no objections were forthcoming in the

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interim. This court cannot indefinitely delay deciding a matter to allow petitioner additional time

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in which to file objections to findings and recommendations.

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Moreover, a state prisoner seeking a writ of habeas corpus has no absolute entitlement to

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

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circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). Specifically, the federal

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rules governing habeas cases brought by state prisoners require a district court issuing an order

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denying a habeas petition to either grant or deny therein a certificate of appealability. See Rules

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Governing § 2254 Case, Rule 11(a). A certificate of appealability is required for an appeal of a

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motion under Rule 60 in a habeas action. United States v. Winkles, 795 F.3d 1134, 1139–40 (9th

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Cir. 2015); Lynch v. Blodgett, 999 F.2d 401, 402–03 (9th Cir. 1993). A judge shall grant a

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certificate of appealability “only if the applicant has made a substantial showing of the denial of a

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constitutional right,” 28 U.S.C. § 2253(c)(2), and the certificate must indicate which issues satisfy

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this standard. 28 U.S.C. § 2253(c)(3). “Where a district court has rejected the constitutional

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claims on the merits, the showing required to satisfy § 2253(c) is straightforward: [t]he petitioner

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must demonstrate that reasonable jurists would find the district court’s assessment of the

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constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Additionally, for claims denied on procedural grounds, a certificate of appealability should issue
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“when the prisoner shows, at least, that jurists of reason would find it debatable whether the

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petition states a valid claim of the denial of a constitutional right and that jurists of reason would

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find it debatable whether the district court was correct in its procedural ruling.” Id. Here,

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petitioner has not made such a showing. Accordingly, a certificate of appealability will not be

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issued.

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For all of the reasons set forth above:
1. The findings and recommendations issued May 30, 2017 (Doc. No. 46) are adopted in
full;
2. The motion for relief from judgment under Rule 60(b) (Doc. No. 44) is denied; and
3. The court declines to grant a certificate of appealability.
IT IS SO ORDERED.
Dated:

August 17, 2017
UNITED STATES DISTRICT JUDGE

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