Gallego v. Johnson

Filing 36

ORDER Denying Certificate of Appealability Pursuant to U.S.C. Section 2253. Signed by Judge Edward M. Chen on 8/22/2017. (emcsec, COURT STAFF) (Filed on 8/22/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ERICKA SHIRLEY GALLEGO,
Petitioner,

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ORDER DENYING CERTIFICATE OF
APPEALABILITY PURSUANT TO 28
U.S.C. § 2253

v.

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DEBORAH K. JOHNSON,

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Respondent.

Docket No. 33

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For the Northern District of California

United States District Court

Case No. 16-cv-02720-EMC

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Petitioner Ericka Shirley Gallego filed a petition in this Court seeking a writ of habeas

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corpus on ineffective assistance of counsel grounds. This Court dismissed Petitioner‟s request

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without reaching the merits of her ineffective assistance of counsel claims because adequate and

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independent state law grounds supported the conviction. See Docket Nos. 31, 32. Petitioner

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subsequently filed a Notice of Appeal to the Ninth Circuit Court of Appeals, but did not include a

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request for a certificate of appealability pursuant to 28 U.S.C. § 2253. See Docket No. 33. On

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August 18, 2017, the Ninth Circuit ordered this Court to determine whether a certificate of

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appealability should issue pursuant to 28 U.S.C. § 2253(c). See United States v. Asrar, 116 F.3d

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1268, 1270 (9th Cir. 1997) (“Upon the filing of a notice of appeal and a request for a certificate of

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appealability, the district court shall indicate which specific issue or issues satisfy the standard for

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issuing a certificate, or state its reasons why a certificate should not be granted.”).
For the reasons below, this Court DENIES the request for a certificate of appealability.

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A.

Petitioner‟s State Habeas Proceedings
Petitioner was convicted of kidnapping of a child under 14 years of age on April 15, 2013.

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She appealed her conviction to the California Court of Appeal, which affirmed on July 29, 2014.

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Over a year later, on September 3, 2015, Gallego filed her first Petition for Writ of Habeas Corpus

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to the California Court of Appeal. Her petition was denied without prejudice. She re-filed the

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same petition with the Contra Costa County Superior Court on November 3, 2015. The Superior

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Court denied her petition on January 8, 2016, stating, in part, that “the present petition is not

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timely” and citing the California Supreme Court‟s decision in In re Clark, 5 Cal.4th 750 (1993).

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On January 12, 2016, Gallego filed the same Petition for Writ of Habeas Corpus with the

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California Court of Appeal, which denied her request in a summary disposition on February 10,

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2016. On February 26, 2016, she submitted the petition to the California Supreme Court, which

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also denied it in a summary disposition on May 18, 2016. See generally Docket No. 31 at 1-2.

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B.

Legal Standard
“A state prisoner whose petition for a writ of habeas corpus is denied by a federal district

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court does not enjoy an absolute right to appeal.” Buck v. Davis, 137 S.Ct. 759, 773 (2017).

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For the Northern District of California

United States District Court

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Rather, a circuit justice or district court judge must issue a certificate of appealability, but may do

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so “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28

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U.S.C. § 2253(c)(1). This inquiry “is not coextensive with a merits analysis.” Buck, 137 S.Ct. at

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773. “[T]he only question is whether the applicant has shown that „jurists of reason could disagree

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with the district court‟s resolution of his constitutional claims or that jurists could conclude the

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issues presented are adequate to deserve encouragement to proceed further.” Id. (quoting Miller-

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El v. Cockrell, 537 U.S. 322, 336 (2003)).
“When the district court denies a habeas petition on procedural grounds without reaching

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the prisoner‟s underlying constitutional claim, a COA should issue when the prisoner shows, at

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least, that jurists of reason would find it debatable whether the petition states a valid claim of the

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denial of a constitutional right and that jurists of reason would find it debatable whether the

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district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

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(emphasis added). “Where a plain procedural bar is present and the district court is correct to

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invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court

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erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id.

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C.

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Analysis
Whether a certificate of appealability should issue in this case “has two components, one
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directed at the underlying constitutional claims and one directed at the district court‟s procedural

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holding.” Slack, 529 U.S. at 484-85. Petitioner must prevail on both showings before an appeal

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can be made. Here, the Court may dispose of the application fairly and promptly by resolving the

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procedural holding. Id. (“[A] court may find that it can dispose of the application in a fair and

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prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the

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record and arguments.”). The Court concludes that a certificate should not issue because

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reasonable jurists could not debate that independent and adequate state law grounds regarding the

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untimeliness of her petition supported her conviction.

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As the Court‟s order explained, the California Superior Court denied Petitioner‟s habeas

Clark (1993) 5 Cal.4th 750).” See Docket No. 31 at 2. The United States Supreme Court has

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For the Northern District of California

petition on January 8, 2016, stating, in part that “the present petition is not timely. (See In re

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United States District Court

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specifically held that California‟s bar against untimely state habeas petitions is “adequate” to

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support a judgment denying federal habeas relief, even if the state court‟s summary disposition

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merely cites to In re Clark. See Walker v. Martin, 562 U.S. 307, 321 (2011). Indeed, the Court

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explicitly held that “[a] summary denial citing Clark and Robbins means that the petition is

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rejected as untimely.” Id. at 313. In this case, the Superior Court not only cited the relevant cases,

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but explicitly stated “the present petition is not timely.” See Docket No. 31 at 2. Gallego‟s

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subsequent attempts to bring the same petition before the California Court of Appeals and

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California Supreme Court were denied in a summary manner without explanation; accordingly, it

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is proper to assume that they were also based on the petition‟s untimeliness. See Ylst v.

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Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state judgment

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rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same

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claim rest upon the same ground. [. . .] [W]here, as here, the last reasoned opinion on the claim

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explicitly imposes a procedural default, we will presume that a later decision rejecting the claim

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did not silently disregard that bar and consider the merits.”). Thus, it was clear and unambiguous

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that independent and adequate state law grounds existed to reject the petition.

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The Court thus concludes that reasonable jurists could not disagree about whether her
conviction was supported by independent and adequate state law grounds, namely, the
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untimeliness of her habeas petitions. Accordingly, under Slack, Petitioner‟s request for a

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certificate of appealability is properly denied without reaching the merits of her ineffective

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assistance of counsel claim.

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IT IS SO ORDERED.

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Dated: August 22, 2017
______________________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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