Moore v. Chappell

Filing 23

ORDER signed by Judge Lawrence K. Karlton on 6/27/2013 GRANTING 18 Motion for Reconsideration; VACATING 16 Order Adopting Findings and Recommendations, 17 Judgment; ADOPTING, in full, 10 Findings and Recommendations; DISMISSING this action without prejudice; DECLINING to issue a Certificate of Appealability; DENYING 21 Motion to Appoint Counsel; DIRECTING the Clerk of Court to the United States Court of Appeals for the Ninth Circuit. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS EUGENE MOORE,
Petitioner,

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vs.

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No. 2:13-cv-0182 LKK JFM P

K. CHAPPELL, Warden,
Respondent.

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ORDER
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Petitioner is a state prisoner proceeding pro se and in forma pauperis with an

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application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to

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a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On February 6, 2013, the magistrate judge filed findings and recommendations

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herein which were served on petitioner and which contained notice to petitioner that any

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objections to the findings and recommendations were to be filed within fourteen days. By order

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filed March 19, 2013, petitioner was granted an additional period of thirty days in which to file

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objections to the findings and recommendations. On May 7, 2013, this court adopted the

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findings and recommendations in full and dismissed the action without prejudice. Judgment was

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entered on the same day.

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On May 17, 2013, petitioner filed a motion for reconsideration of the May 7, 2013

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order and judgment thereon. Petitioner contends, correctly, that on May 1, 2013 he was granted

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a second thirty day extension of time to file objections to the findings and recommendations and

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that this court’s order was entered prior to the expiration of that thirty day period. Petitioner’s

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objections, which are dated June 1, 2013, were entered on the docket in this action on June 5,

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2013. Good cause appearing, petitioner’s motion for reconsideration will be granted, the May 7,

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2013 order and judgment thereon will be vacated, and the court will conduct a de novo review

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of the findings and recommendation in light of petitioner’s objections thereto.

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The magistrate judge recommended that this action be dismissed on the grounds

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that the instant action is a second or successive petition and that petitioner has not obtained

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authorization from the United States Court of Appeals for the Ninth Circuit to proceed with the

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instant action. The facts show that petitioner has previously filed in this court an application for

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a writ of habeas corpus attacking the conviction and sentence that he challenges in the instant

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action. That prior action is identified as Case No. 2:02-cv-0007 JAM DAD P. See Findings and

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Recommendations filed February 6, 2013 (ECF No. 10) at 2. That action was filed on January 3,

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2002 and denied on the merits on April 1, 2011. Petitioner has appealed that denial to the United

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States Court of Appeals for the Ninth Circuit. Petitioner does not dispute these facts in his

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objections. He does, however, dispute the magistrate judge’s finding that the United States

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Court of Appeals for the Ninth Circuit has denied a certificate of appealability in that case. He

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contends that the United States Court of Appeals for the Ninth Circuit has granted a certificate of

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appealability in the case and that the appeal is still pending. Petitioner further contends that the

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magistrate judge’s findings concerning the denial of a certificate of appealability are based on a

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different appeal that petitioner filed from a separate action that he lost in this court, Case No. 11-

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3263 MCE CMK P.

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Review of the docket in the United States Court of Appeals for the Ninth Circuit.1

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shows that the magistrate judge’s findings are correct. Petitioner’s appeal from the judgment

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entered in Case No. 2:02-cv-0007 JAM DAD P was assigned Case No. 11-16239 in the United

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States Court of Appeals for the Ninth Circuit. On November 8, 2012, the United States Court of

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Appeals denied petitioner’s request for a certificate of appealability in that action. Petitioner was

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not permitted to proceed with the appeal from Case No. 11-3263 based on findings made by a

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panel of the court of appeals pursuant to a pre-filing review ordered entered in the court of

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appeals. See Order filed September 6, 2012 in Case No. 2:11-cv-3263 MCE CMK P (ECF No.

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20).

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For the foregoing reasons, the court finds the findings and recommendations to be

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supported by the record and by the magistrate judge’s analysis. Accordingly, they will be

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adopted in full and this action will be dismissed without prejudice.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United

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States District Courts, “[t]he district court must issue or a deny a certificate of appealability

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when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. A

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

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

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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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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803
F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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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

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not 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 the instant

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action is a second or successive petition for which petitioner lacks the required authorization to

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proceed. Accordingly, this court will not issue a certificate of appealability.

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On June 5, 2013, petitioner filed a motion for appointment of counsel. There
currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius

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v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the

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appointment of counsel at any stage of the case “if the interests of justice so require.” See Rule

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8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does not find that the

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interests of justice would be served by the appointment of counsel at the present time.

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Accordingly, petitioner’s motion for appointment of counsel will be denied.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner’s May 17, 2013 motion for reconsideration (ECF No. 18) is granted;

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2. This court’s May 7, 2013 order (ECF No. 16) and the judgment entered

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thereon (ECF No. 17) are vacated;

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3. The findings and recommendations filed February 6, 2013, are adopted in full;

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4. This action is dismissed without prejudice;

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5. This court declines to issue a certificate of appealability;

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6. Petitioner’s June 5, 2013 motion for appointment of counsel (ECF No. 21) is

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denied; and

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7. The Clerk of the Court is directed to process petitioner’s appeal (ECF No. 20)

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to the United States Court of Appeals for the Ninth Circuit.

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DATED: June 27, 2013.

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