Schwartzmiller v. Clark

Filing 20

ORDER DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge JEFFREY S. WHITE on 5/13/13. (jjoS, COURT STAFF) (Filed on 5/13/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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DEAN A. SCHWARTZMILLER,

For the Northern District of California

United States District Court

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ORDER DENYING
CERTIFICATE OF
APPEALABILITY

Petitioner,

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C 10-0057 JSW (PR)

vs.
KENNETH CLARK, Warden,
Respondent.

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This is a habeas corpus case filed pro se by a state prisoner pursuant to 28 U.S.C.

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§ 2254. On December 23, 2011, the petition was denied on the grounds of procedural

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default because the state courts held that both of his claims were forfeited when

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petitioner failed to make a contemporaneous objection on the grounds he relied upon in

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the appeal and in the instant petition. See Inthavong v. Lamarque, 420 F.3d 1055, 1058

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(9th Cir. 2005) (affirming denial of petition for procedural default based on California’s

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contemporaneous objection rule); Davis v. Woodford, 384 F.3d 628, (9th Cir. 2004)

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(holding objection on evidentiary ground insufficient to preserve constitutional claim,

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which therefore was procedurally barred on federal habeas); Paulino v. Castro, 371 F.3d

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1083, 1092–93 (9th Cir. 2004) (holding petitioner barred from challenging jury

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instruction for failure to object at trial); Vansickel v. White, 166 F.3d 953, 957–58 (9th

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Cir. 1999) (holding petitioner barred from challenging denial of peremptory challenges

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for failure to contemporaneously object). A certificate of appealability was denied in the

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same order.

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About a year later, Petitioner filed a motion for reconsideration, which was denied

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on March 22, 2013. Petitioner appealed the order denying reconsideration, and the Court

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of Appeals issued a limited remand order directing this Court to determine whether a

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certificate of appealability should be granted. No reasonable jurist would disagree that

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Petitioner presented no grounds for reconsidering the denial of the petition. Therefore, a

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certificate of appealability is DENIED.

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IT IS SO ORDERED.
DATED: May 13, 2013

JEFFREY S. WHITE
United States District Judge

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For the Northern District of California

United States District Court

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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DEAN A. SCHWARTZMILLER,

Case Number: CV10-00057 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.
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KENNETH CLARK et al,
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Defendant.
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For the Northern District of California

United States District Court

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/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.
That on May 13, 2013, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

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Dean A. Schwartzmiller
F67490
P.O. Box 5246
Corcoran, CA 93212

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Dated: May 13, 2013
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk