Patterson v. Small

Filing 25

ORDER DENYING 24 CERTIFICATE OF APPEALABILITY. Signed by Judge Maxine M. Chesney on May 20, 2011. (mmcsec, COURT STAFF) (Filed on 5/20/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Petitioner,
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v.
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LARRY SMALL, Warden, )
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Respondent.
________________________ )
NORMAN PATTERSON,

No. C 08-5423 MMC (PR)
ORDER DENYING CERTIFICATE OF
APPEALABILITY
(Docket No. 24)

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On December 2, 2008, petitioner, a California prisoner proceeding pro se, filed the

19 above-titled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 6,
For the Northern District of California

United States District Court

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20 2010, respondent’s motion to dismiss the petition as untimely was granted, judgment was
21 entered in respondent’s favor, and the case was closed. On October 21, 2010, the Court
22 granted petitioner’s first request for an extension of time to file a notice of appeal and
23 instructed petitioner to file the notice of appeal within 14 days, i.e., by November 4, 2010.
24 On May 10, 2011, the Court denied as untimely petitioner’s second request for an extension
25 of time to file a notice of appeal.
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Petitioner has now filed a notice of appeal and request for a certificate of

27 appealability, wherein petitioner argues, for the first time, his appellate counsel on direct
28 review failed to fully exhaust his claims in the California Supreme Court. According to

1 petitioner, because counsel failed to “perfect” petitioner’s direct appeal (see App. for COA at
2 4), petitioner was forced to return to state court to exhaust his claims, preventing him from
3 bringing his federal habeas petition within the one-year time limit.
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The Ninth Circuit has stated, however, that counsel’s failure to perfect an appeal from

5 a conviction, without more, is not an “extraordinary circumstance” warranting equitable
6 tolling. Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir. 2010). Irrespective of whether
7 his counsel failed to perfect a direct appeal, petitioner was able to pursue state post8 conviction habeas proceedings pursuant to Cal. Const., art. I, § 11. As stated in the Court’s
9 August 6, 2010 order of dismissal, petitioner unreasonably delayed in pursuing those
10 proceedings.
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In sum, petitioner has not shown “that jurists of reason would find it debatable

12 whether the district court was correct in its procedural ruling.” See Slack v. McDaniel, 529
13 U.S. 473, 484 (2000). Accordingly, the request for a certificate of appealability is hereby
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DENIED.

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The Clerk shall forward this order, along with the case files in 08-5423 MMC (PR)

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and 07-1182 MMC (PR), to the United States Court of Appeals for the Ninth Circuit, from

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which petitioner may also seek a certificate of appealability. See United States v. Asrar, 116

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F.3d 1268, 1270 n.2 (9th Cir. 1997).
This order terminates Docket No. 24.
IT IS SO ORDERED.
DATED: May 20, 2011
____________________________
MAXINE M. CHESNEY
United States District Judge

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