Starr v. State of California, et al

Filing 20

ORDER signed by Judge Kimberly J. Mueller on 8/8/13 ORDERING that Petitioner's pending motions (ECFs 13-16) are DENIED. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBIN STARR,

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No. 2:13-cv-00006-KJM-AC
Petitioner,

v.

ORDER

STATE OF CALIFORNIA, et al.,

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Respondents.

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On May 31, 2013, this court adopted the magistrate judge’s recommendation to

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deny as successive petitioner’s application for a writ of habeas corpus, which the court construed

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to be brought under 28 U.S.C. § 2254. (ECF 6.) On June 17, 2013, petitioner filed a notice of

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appeal and a motion to proceed on appeal in forma pauperis (ECFs 8–9), which the assigned

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magistrate judge denied on June 20, 2013, because petitioner had not moved to proceed in forma

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pauperis in the district court and because the appeal was not taken in good faith (ECF 10).

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Petitioner subsequently filed objections to the magistrate judge’s denial of his in forma pauperis

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motion (ECF 12), and on July 26, 2013, filed additionally a motion to vacate, a motion to

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proceed in forma pauperis, a motion to compel discovery, and a motion to appoint counsel (ECFs

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13–16).

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If petitioner seeks reconsideration of the court’s order adopting the
recommendation of dismissal he has not followed the correct procedure. “To seek Rule 60(b)
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relief during the pendency of an appeal, the proper procedure is to ask the district court whether it

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wishes to entertain the motion, or to grant it, and then move [the Court of Appeal], if appropriate,

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for remand of the case.” Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2002) (internal

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quotation marks & citation omitted).

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If petitioner seeks reconsideration of his request to proceed in forma pauperis on

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appeal, the court denies the motion. As the magistrate judge observed, petitioner’s application is

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successive. (ECF 5 at 1.)

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On August 6, 2013, the Ninth Circuit remanded this case for the limited purpose of

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granting or denying a certificate of appealability. (ECF 19.) A certificate of appealability may

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issue under 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial

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of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has instructed that a

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petitioner must show that “reasonable jurists could debate whether . . . the petition should have

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been resolved in a different manner or that the issues presented were adequate to deserve

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encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because the

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court has found previously that petitioner’s application is successive, the court concludes that

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reasonable jurists would not debate the resolution of the issues in petitioner’s underlying section

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2254 application and declines to issue a certificate of appealability.

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Petitioner’s pending motions (ECFs 13–16) are denied.

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IT IS SO ORDERED.

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DATED: August 8, 2013.

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UNITED STATES DISTRICT JUDGE

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