Youngblood v. Superior Court of Butte Co. et al

Filing 18

ORDER signed by Magistrate Judge Gregory G. Hollows on 12/17/2013 ORDERING that a certificate of appealability is ISSUED in the present action; and the Clerk shall serve this order on the Ninth Circuit of Appeals. (cc: Ninth Circuit) (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESSE L. YOUNGBLOOD,

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Petitioner,

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v.

No. 2:13-cv-1490 GGH P

ORDER

SUPERIOR COURT OF BUTTE CO., et
al.,
Respondents.

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Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this

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court’s September 11, 2013 dismissal of his application for a writ of habeas corpus as successive.

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On December 13, 2013, the Ninth Circuit Court of Appeals remanded the matter to this court for

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a determination of whether a certificate of appealability should be granted or denied. Before

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petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c);

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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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certificate of appealability must “indicate which specific issue or issues satisfy” the requirement.

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28 U.S.C. § 2253(c)(3).

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A certificate of appealability should be granted for any issue that petitioner can

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demonstrate is “‘debatable among jurists of reason,’” could be resolved differently by a different

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court, or is “‘adequate to deserve encouragement to proceed further.’” Jennings v. Woodford,

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290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).1

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Petitioner has made a substantial showing of the denial of a constitutional right in the

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following issue(s) presented by the instant petition. The underlying, initial petition in this case,

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11-01223 LKK DAD P was dismissed on statute of limitations grounds. At the time of ruling in

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the petition under review here, the undersigned was bound to apply McNabb v. Yates, 576 F.3d

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1028 (9th Cir. 2009) (dismissal of habeas petition for failure to comply with statute of limitations

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renders subsequent petitions successive). That holding has not been overturned. However, in

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Cook v. Ryan, 688 F.3d 598, 608 (9th Cir. 2012), the court ruled that a Fed. R. Civ. P 60(b)

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motion attacking a previous, final ruling on inter alia, limitations grounds, was not attacking a

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ruling on the “merits,” and hence could not be considered a successive petition. The issue

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addressed in both cases (whether a previous petition dismissed for being untimely makes a second

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attack in habeas as one being “on the merits” of a conviction and “successive”) appears similar,

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but the outcome of each case appears to be conflicting, and based simply on the form in which a

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petitioner makes his attack on the previous ruling, i.e., a second petition versus a Rule

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60(b)motion.2 Perhaps an appellate ruling in this case could clear up the apparent confusion.

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Accordingly, IT IS HEREBY ORDERED that:

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1. A certificate of appealability is issued in the present action.

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2. The Clerk of the Court shall serve this order on the Ninth Circuit Court of Appeals.

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Dated: December 17, 2013

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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Except for the requirement that appealable issues be specifically identified, the standard for
issuance of a certificate of appealability is the same as the standard that applied to issuance of a
certificate of probable cause. Jennings, at 1010.
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Cook itself involved a decision dismissing the claim on procedural default grounds, but the
opinion expressly included limitations dismissals as being included in its pronouncement.
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