Bouie v. Board of Parole Hearings

Filing 76

ORDER signed by Senior Judge Morrison C. England, Jr on 12/2/21 DENYING 74 Motion for Certificate of Appealability. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DIRK JAONG BOUIE, JR.,

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Petitioner,

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v.

No. 2:12-cv-1221 MCE AC P

ORDER

BOARD OF PAROLE HEARINGS,
Respondent.

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By order filed August 25, 2021, the undersigned denied petitioner’s motion for relief from

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judgment under Federal Rule of Civil Procedure 60(b). ECF No. 64. Petitioner now seeks a

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certificate of appealability. ECF No. 74.

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Petitioner seeks a certificate of appealability as to the denial of his Rule 60(b)(6) motion

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for relief from judgment. ECF No. 74. Petitioner argues that the court erred in recharacterizing

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his motion as a second or successive petition, that the Ninth Circuit’s denial of leave to file a

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second or successive petition should be vacated, and that this court erred by refusing to file his

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motion as a separate action. Id.

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Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must
issue or deny a certificate of appealability when it enters a final order adverse to the applicant.
[A] COA should only issue for the appeal arising from the denial of
a Rule 60(b) motion in a section 2255 proceeding. . . if the movant
shows that (1) jurists of reason would find it debatable whether the
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district court abused its discretion in denying the Rule 60(b) motion
and (2) jurists of reason would find it debatable whether the
underlying [action] states a valid claim of the denial of a
constitutional right.

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United States v. Winkles, 795 F.3d 1134, 1143 (9th Cir. 2015) (considering motion for relief from

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judgment arising from denial of § 2255 motion); see also Payton v. Davis, 906 F.3d 812, 818 n.8

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(9th Cir. 2018) (analysis in Winkles applies to petitions for relief under § 2254).

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Petitioner’s motion was denied because it sought to vacate a Ninth Circuit order denying

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his application for leave to file a second or successive petition for writ of habeas corpus, which

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this court does not have the authority to do. ECF No. 64. Although the undersigned further noted

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that this court is unable to consider a second or successive petition until petitioner receives

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authorization from the Ninth Circuit, it did not construe the motion as a second or successive

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petition. Id. Furthermore, because the motion was not construed as a second or successive

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petition, it was not improper to file it in the instant action, which concerns the same conviction,

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rather than filing it as a separate action. The undersigned does not find that jurists of reason

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would find it debatable that the denial of petitioner’s motion or the filing of the motion in this

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case was an abuse of discretion.

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Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for a certificate of
appealability, ECF No. 74, is DENIED.
IT IS SO ORDERED.

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Dated: December 2, 2021

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