Seasee v. Foulk

Filing 20

ORDER DENYING Request for Issuance of Certificate of Appealability 16 , signed by Magistrate Judge Jennifer L. Thurston on 06/24/2015. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROGER SAESEE,

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Petitioner,
v.
F. FOULK,
Respondent.

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Case No.: 1:14-cv-01287-JLT
ORDER DENYING REQUEST FOR ISSUANCE
OF CERTIFICATE OF APPEALABILITY
(Doc. 16)

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On August 27, 2014, the Magistrate Judge dismissed the petition as successive and decline to

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issue a certificate of appealability. (Doc. 10). On October 6, 2014, Petitioner filed a motion for

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reconsideration, contending that the petition was not successive because the earlier petition challenged

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his conviction while this petition challenged his sentence. (Doc. 13). On May 22, 2015, the Court

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denied the motion for reconsideration. (Doc. 14).

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On June 17, 2015, Petitioner filed his motion for issuance of a certificate of appealability from

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the denial of the Rule 60 motion. (Doc. 16). Petitioner subsequently filed his notice of appeal. (Doc.

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17). On June 17, 2015, the Ninth Circuit remanded the matter for that this Court rule on the issuance

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of a certificate of appealability. (Doc. 18).

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DISCUSSION
A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district
court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v.
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Cockrell, 537 U.S. 322, 335-336 (2003). The controlling statute in determining whether to issue a

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certificate of appealability is 28 U.S.C. § 2253, which provides as follows:
(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 petition,1 the court may only issue a certificate of appealability when the

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petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).

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To make a substantial showing, the petitioner must establish that “reasonable jurists could debate

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whether (or, for that matter, agree that) the petition should have been resolved in a different manner or

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that the issues presented were ‘adequate to deserve encouragement to proceed further’.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
In the present case, the Court finds that Petitioner has not made the required substantial

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showing of the denial of a constitutional right to justify the issuance of a certificate of appealability.

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Specifically, the analysis and reasons set forth in the Court’s order denying the motion for

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reconsideration are valid and require denial of same. Petitioner’s motion contained no cognizable

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grounds for granting reconsideration under Rule 60(b). Once again, Petitioner’s argument that the

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Because the Court of Appeals is requiring this Court to consider the request for a certificate of appealability from the
motion for reconsideration of the order denying the petition and declining to issue a certificate of appealability, the Court
applies the same standard as in the original decision to decline the certificate.

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petition is not successive merely because he challenges an issue he failed to challenge in the prior

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action, is contrary to the law. Reasonable jurists would not find the Court’s determination that

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Petitioner is not entitled to reconsideration debatable, wrong, or deserving of encouragement to

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proceed further. Thus, the Court DECLINES to issue a certificate of appealability.

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ORDER

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Accordingly, it is HEREBY ORDERED that Petitioner’s motion issuance of a certificate of
appealability (Doc. 16), is DENIED.

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IT IS SO ORDERED.
Dated:

June 24, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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