Ortiz v. Baughman

Filing 32

ORDER signed by District Judge John A. Mendez on 7/9/2018 ORDERING that this court DECLINES to issue the certificate of appealability; and the Clerk of Court shall confirm that the record in this case has been transmitted to the Court of Appeals. (cc: USCA)(Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TRAVIS MICHAEL ORTIZ,

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Petitioner,

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v.

District Court No. 2:18-cv-00255 JAM AC P
Ninth Circuit Court of Appeals No. 18-16193

DAVID BAUGHMAN,

ORDER

Respondent.

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The Ninth Circuit Court of Appeals has remanded this matter to this court for the limited
purpose of determining whether a certificate of appealability (COA) should issue.
On April 27, 2018, this court dismissed without prejudice petitioner’s application for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. See ECF Nos. 7, 15-6. This court found the

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application successive and that petitioner had not obtained authorization from the Court of

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Appeals for this court to consider the merits of the application. See 28 U.S.C. § 2244(b)(3). Prior

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authorization from the appellate court is a jurisdictional prerequisite for this court’s review of the

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merits of a successive petition. See Burton v. Stewart, 549 U.S. 147, 152 (2007); Cooper v.

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Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (once district court has recognized a petition as

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second or successive pursuant to § 2244(b), it lacks jurisdiction to consider the merits).

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In dismissing this action, this court did not then address whether a COA should issue. No
appeal may be taken from a final district court order in a Section 2254 proceeding if a COA has
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not issued. See 28 U.S.C. § 2253(c); see also Fed. R. App. P. 22(b)(1). A COA may issue “only

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if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

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§ 2253(c)(2). “[W]hen the district court denies a habeas petition on procedural grounds without

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reaching the prisoner’s underlying constitutional claim, a COA should issue (and an appeal of the

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district court’s order may be taken) if the prisoner shows, at least, that jurists of reason would find

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it debatable whether the petition states a valid claim of the denial of a constitutional right, and

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that jurists of reason would find it debatable whether the district court was correct in its

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procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000).

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In the instant case, this court did not reach the merits of petitioner’s claims because the

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application was denied for lack of jurisdiction. Reasonable jurists would not debate whether

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a successive application for habeas relief may be reviewed on the merits by this district court

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without prior authorization from the Ninth Circuit Court of Appeals. See 28 U.S.C. § 2244(b);

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Felker v. Turpin, 518 U.S. 651, 656-57 (1996). Therefore, this court declines to issue a certificate

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of appealability.

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Accordingly, IT IS HEREBY ORDERED that:

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1. This court declines to issue the certificate of appealability referenced in 28 U.S.C. §

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2253(c); and
2. The Clerk of Court shall confirm that the record in this case has been transmitted to the

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Court of Appeals, see ECF No. 25, and ECF No. 31 at 2.

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DATED: July 9, 2018

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/s/ John A. Mendez________________________
UNITED STATES DISTRICT COURT JUDGE

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