Vera v. Gipson

Filing 63

ORDER DENYING Certificate of Appealability, signed by District Judge Anthony W. Ishii on 11/4/2015. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GUILLERMO VERA,
Petitioner,

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Case No. 1:13-cv-00814-AWI-SKO HC
ORDER DENYING CERTIFICATE OF
APPEALABILITY

v.
CONNIE GIPSON,
Respondent.

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(Doc. 62)

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Petitioner, a state prisoner serving a determinate term for aggravated assault and an

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indeterminate term of thirty years to life for second degree murder, filed this action seeking relief

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under 28 U.S.C. § 2254. He now seeks to appeal this Court's denial of his motion to

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reconsider/amend the Court's findings under F.R.Civ.P. 59. (Doc. 56).

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The Court denied Petitioner’s reconsideration motion on September 11, 2015, finding that

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the motion was untimely and that, in any event, Petitioner’s disagreement with the Court’s ruling

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was not adequate grounds for reconsideration. The order also reminded Petitioner that the

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introduction of new issues, particularly claims relating to conditions of confinement that are properly

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brought in a civil rights action under 42 U.S.C. § 1983, was inappropriate in a motion for

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reconsideration.

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On October 14, 2015, Petitioner filed a notice of appeal. (Doc. 58) On October 30, 2015, the
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Ninth Circuit remanded the case for the limited purpose of granting a certificate of appealability.

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(Doc. 62)

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A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district

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court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell,

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537 U.S. 322, 335-36 (2003). In a proceeding under 28 U.S.C. § 2254, an applicant may not appeal

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a District Court judgment unless the District Judge or a Circuit Judge issues a certificate of

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appealability. See 28 U.S.C. § 2253(c)(1)(A); F.R.App.P. 22(b); United States v. Winkles, 795 F.3d

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1134, 1140-41 (9th Cir. 2015); Hanson v. Mahoney, 433 F.3d 1107, 1111 (9th Cir. 2006). Section

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2253(c) provides:

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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 issues or issues satisfy the showing required by paragraph
(2).

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If a court denies a habeas petition, the court may only issue a certificate of appealability "if

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jurists of reason could disagree with the district court's resolution of his constitutional claims or that

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jurists could conclude the issues presented are adequate to deserve encouragement to proceed

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further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the
petitioner is not required to prove the merits of his case, he must demonstrate "something more than

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the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 537 U.S. at
338.
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In the present case, the Court finds that reasonable jurists would not find the Court's

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determination that Petitioner is not entitled to federal habeas corpus relief on reconsideration

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debatable, wrong, or deserving of encouragement to proceed further.

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CONCLUSION AND ORDER
The Court hereby DECLINES to issue a certificate of appealability.

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IT IS SO ORDERED.
Dated: November 4, 2015
SENIOR DISTRICT JUDGE

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