Washington v. Cambra

Filing 37

ORDER denying certificate of appealability re 36 Request filed by Donald Washington, Jr.. Signed by Judge Charles R. Breyer on 3/4/2016. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 3/4/2016)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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On April 17, 2001, the court denied on the merits petitioner’s application

DONALD WASHINGTON, B69981,
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Petitioner,
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vs.
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DEBBIE ASUNCION, Acting Warden,
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Respondent.

No. C 97-2316 CRB (PR)
ORDER DENYING
CERTIFICATE OF
APPEALABILITY
(Dkt. #36)

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for a writ of habeas corpus under 28 U.S.C. § 2254 challenging a state superior

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court conviction on two grounds – petitioner’s right to a fair trial was violated

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when the jury saw him in shackles and the prosecution improperly used his post-

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Miranda silence as evidence of his sanity. On May 3, 2001, the court denied a

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certificate of appealability (COA) under 28 U.S.C. § 2253 and, on June 18, 2001,

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the Ninth Circuit also denied a COA.

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On February 8, 2016, nearly fifteen years later, petitioner filed a motion

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for reconsideration or to vacate judgment under Federal Rule of Civil Procedure

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60(b) claiming that the court had wrongly rejected his two previously-raised

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claims for relief. On February 16, 2016, the court denied the motion. The court

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explained that a Rule 60(b) motion that attacks a federal habeas court’s previous

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resolution of a claim or claims on the merits must be treated as a successive

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petition and subjected to the requirements of 28 U.S.C. § 2244(b), which in part

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preclude the filing a successive petition in this court unless petitioner first obtains

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from the Ninth Circuit an order authorizing this court to consider the petition, and

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petitioner has not obtained such an order from the Ninth Circuit.

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Rather than requesting from the Ninth Circuit an order authorizing the

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filing of a successive petition in this court, petitioner filed a notice of appeal and

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a request for a COA from the court’s denial of his Rule 60(b) motion.

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Petitioner’s request for a COA (dkt. #36) is DENIED. Petitioner has not

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demonstrated that “jurists of reason would find it debatable whether the petition

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states a valid claim of the denial of a constitutional right and that jurists of reason

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would find it debatable whether the district court was correct in its procedural

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ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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The clerk shall forward to the Ninth Circuit the case file with this order.

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See United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997).

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SO ORDERED.

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DATED: Mar 4, 2016

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CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\HC.97\Washington, D.97-2316.deny_coa.wpd

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