Patterson v. Sherman
Filing
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ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY signed by Chief Judge Lawrence J. O'Neill on 11/30/2016. (Sant Agata, S)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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VESTER L. PATTERSON,
Case No. 1:15-cv-00053-LJO-MJS
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Petitioner, ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY
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v.
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(Doc. 51)
STU SHERMAN, Warden,
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Respondent.
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
corpus under 28 U.S.C. § 2254.
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On September 16, 2015, this Court dismissed the petition as untimely and declined
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to issue a certificate of appealabilty. (Order, ECF No. 30.) Judgment was entered the
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same day.
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Petitioner then filed three separate motions to vacate the judgment. (ECF Nos. 32,
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37, 40.) The Court denied the first two, however, Petitioner filed the present appeal to
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the Ninth Circuit before the Court could address the third motion. It appears that
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Petitioner is appealing the Court’s denial of his second motion to vacate the judgment.
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(ECF Nos. 39, 44.) On November 8, 2016, the Ninth Circuit remanded the case for the
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limited purpose of determining whether a Certificate of Appealability should issue. (ECF
No. 51.)1
A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a
district court’s denial of his petition; an appeal is only allowed in certain circumstances.
Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003). The controlling statute in determining
whether to issue a 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 petitioner’s petition, 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 his
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constitutional claims or that jurists could conclude the issues presented are adequate to
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deserve encouragement to proceed further.” Miller-El, 123 S.Ct. at 1034; Slack v.
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McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the
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While the order of the Ninth Circuit was filed on November 8, 2016, it was not filed on this Court’s
electronic docket until November 28, 2016.
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merits of his case, he must demonstrate “something more than the absence of frivolity or
the existence of mere good faith on his . . . part.” Miller-El, 123 S.Ct. at 1040.
On September 27, 2016, this Court dismissed Petitioner’s motion to vacate the
judgment. The Court based its dismissal on the fact that Petitioner did not present any
new argument why the Court was incorrect for dismissing his petition. Petitioner
contends that his claims challenge the duration of his confinement, not his conviction,
and therefore are timely. However, the Court addressed and denied those claims in its
order finding the petition untimely. (See, ECF No. 20 at 6.) As Petitioner presented no
new argument as to how the Court erred in finding his petition untimely, the Court finds
that reasonable jurists would not find the Court’s determination that Petitioner is not
entitled
to federal habeas corpus relief
debatable,
wrong,
or deserving of
encouragement to proceed further.
Accordingly, the Court DENIES the motion, and DECLINES to issue a certificate of
appealability. The Court ORDERS the Clerk of Court to forward a copy of this order to
the Ninth Circuit Court of Appeals.
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IT IS SO ORDERED.
Dated:
/s/ Lawrence J. O’Neill _____
November 30, 2016
UNITED STATES CHIEF DISTRICT JUDGE
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