Melendez v. Hedgepath

Filing 24

ORDER DENYING CEERTIFICATE OF APPEALABILITY. Signed by Judge Charles R. Breyer on 3/24/2014. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 3/26/2014)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 JULIO MELENDEZ, AA-7292, Petitioner, 10 11 vs. 12 A. HEDGPETH, Warden, 13 Respondent. ) ) ) ) ) ) ) ) ) ) No. C 12-0386 CRB (PR) (9th Cir. No. 14-15453) ORDER DENYING CERTIFICATE OF APPEALABILITY 14 15 On April 17, 2013, the court denied Julio Melendez’s petition for a writ of 16 habeas corpus under 28 U.S.C. § 2254 on the merits, denied a certificate of 17 appealability (COA) as to any of the claims and entered judgment in favor of 18 respondent. Docket #12 & 13. 19 On June 19, 2013, Melendez filed a motion for relief from judgment on 20 the ground that the court denied his petition before he had an opportunity to 21 prepare and file a traverse. The court denied the motion without prejudice to 22 renewing if accompanied by a traverse. Docket #16. 23 On December 23, 2013, Melendez filed a second motion for relief from 24 judgment accompanied by a traverse. The court denied the motion because 25 “nothing in it, or in the attached traverse, compel a different conclusion than that 26 reached by the court in its April 17, 2013 order denying the petition for a writ of 27 habeas corpus and denying a certificate of appealability.” Docket #19 at 1. 28 Melendez appealed. 1 On March 13, 2014, the Ninth Circuit construed Melendez’s appeal as 2 arising from the denial of his motion for relief from judgment and remanded the 3 matter to this court for the limited purpose of granting or denying a COA on the 4 denial of Melendez’s motion for relief from judgment. 5 A COA is DENIED because Melendez has not made “a substantial 6 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 7 Melendez has not demonstrated that “jurists of reason would find it debatable 8 whether the petition states a valid claim of the denial of a constitutional right and 9 that jurists of reason would find it debatable whether the district court was correct 10 11 in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The clerk shall forward to the Ninth Circuit the case file with this order. 12 See United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). 13 SO ORDERED. 14 DATED: March 24, 2014 CHARLES R. BREYER United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 G:\PRO-SE\CRB\HC.12\Melendez, J.12-0386.coa.wpd 27 28 2

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