Bouie v. Board of Parole Hearings

Filing 36

ORDER signed by Chief Judge Morrison C. England, Jr on 10/17/13 GRANTING 30 Motion for Extension; DENYING 29 Motion for Reconsideration; and DENYING 31 Motion for Certificate of Appealability. (Meuleman, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DIRK JA’ONG BOUIE,

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No. 2:12-cv-01221 MCE JFM (HC)

Petitioner,
v.

ORDER

BOARD OF PAROLE HEARINGS,
Respondent.

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Petitioner has filed a request for reconsideration of this court’s order filed August 6, 2013,

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affirming the order of the magistrate judge filed July 10, 2013. ECF No. 29. On September 6,

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2013, respondent filed a motion for enlargement of time to respond to petitioner’s motion for

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reconsideration. ECF No. 30. On October 9, 2013, respondent filed an opposition to petitioner’s

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motion for reconsideration. ECF No. 34. Good cause appearing, respondent’s motion for

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enlargement of time is granted, and respondent’s opposition is deemed timely filed. Thereafter,

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on October 16, 2013, Petitioner submitted his reply. ECF No. 35. All the papers submitted in

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support of, and in opposition to, Petitioner’s reconsideration request have been reviewed and

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considered by the Court.

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Petitioner has failed to demonstrate any new or different facts or circumstances which did

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not exist or were not shown upon the prior motion. See E.D. Local Rule 230(j). Accordingly, the

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motion for reconsideration is denied.
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Petitioner has also timely filed a notice of appeal of this court’s August 6, 2013, dismissal

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of his application for a writ of habeas corpus for failure to exhaust state remedies. ECF No. 31.

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Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. §

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2253(c); Fed. R. App. P. 22(b).

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A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has

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made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The

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court must either issue a certificate of appealability indicating which issues satisfy the required

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showing or must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b).

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Where, as here, the petition was dismissed on procedural grounds, a certificate of

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appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it

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debatable whether the district court was correct in its procedural ruling’; and (2) ‘that jurists of

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reason would find it debatable whether the petition states a valid claim of the denial of a

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constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v.

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McDaniel, 529 U.S. 473, 484 (2000)).

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After careful review of the entire record herein, this court finds that petitioner has not

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satisfied the first requirement for issuance of a certificate of appealability in this case.

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Specifically, there is no showing that jurists of reason would find it debatable whether petitioner

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has exhausted state remedies. Accordingly, a certificate of appealability should not issue in this

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action.

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IT IS SO ORDERED.
Dated: October 17, 2013

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