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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ERICKA SHIRLEY GALLEGO, Petitioner, 8 ORDER DENYING CERTIFICATE OF APPEALABILITY PURSUANT TO 28 U.S.C. § 2253 v. 9 10 DEBORAH K. JOHNSON, 11 Respondent. Docket No. 33 12 For the Northern District of California United States District Court Case No. 16-cv-02720-EMC 13 Petitioner Ericka Shirley Gallego filed a petition in this Court seeking a writ of habeas 14 corpus on ineffective assistance of counsel grounds. This Court dismissed Petitioner‟s request 15 without reaching the merits of her ineffective assistance of counsel claims because adequate and 16 independent state law grounds supported the conviction. See Docket Nos. 31, 32. Petitioner 17 subsequently filed a Notice of Appeal to the Ninth Circuit Court of Appeals, but did not include a 18 request for a certificate of appealability pursuant to 28 U.S.C. § 2253. See Docket No. 33. On 19 August 18, 2017, the Ninth Circuit ordered this Court to determine whether a certificate of 20 appealability should issue pursuant to 28 U.S.C. § 2253(c). See United States v. Asrar, 116 F.3d 21 1268, 1270 (9th Cir. 1997) (“Upon the filing of a notice of appeal and a request for a certificate of 22 appealability, the district court shall indicate which specific issue or issues satisfy the standard for 23 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. 24 25 26 A. Petitioner‟s State Habeas Proceedings Petitioner was convicted of kidnapping of a child under 14 years of age on April 15, 2013. 27 She appealed her conviction to the California Court of Appeal, which affirmed on July 29, 2014. 28 Over a year later, on September 3, 2015, Gallego filed her first Petition for Writ of Habeas Corpus 1 to the California Court of Appeal. Her petition was denied without prejudice. She re-filed the 2 same petition with the Contra Costa County Superior Court on November 3, 2015. The Superior 3 Court denied her petition on January 8, 2016, stating, in part, that “the present petition is not 4 timely” and citing the California Supreme Court‟s decision in In re Clark, 5 Cal.4th 750 (1993). 5 On January 12, 2016, Gallego filed the same Petition for Writ of Habeas Corpus with the 6 California Court of Appeal, which denied her request in a summary disposition on February 10, 7 2016. On February 26, 2016, she submitted the petition to the California Supreme Court, which 8 also denied it in a summary disposition on May 18, 2016. See generally Docket No. 31 at 1-2. 9 B. Legal Standard “A state prisoner whose petition for a writ of habeas corpus is denied by a federal district 10 court does not enjoy an absolute right to appeal.” Buck v. Davis, 137 S.Ct. 759, 773 (2017). 12 For the Northern District of California United States District Court 11 Rather, a circuit justice or district court judge must issue a certificate of appealability, but may do 13 so “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 14 U.S.C. § 2253(c)(1). This inquiry “is not coextensive with a merits analysis.” Buck, 137 S.Ct. at 15 773. “[T]he only question is whether the applicant has shown that „jurists of reason could disagree 16 with the district court‟s resolution of his constitutional claims or that jurists could conclude the 17 issues presented are adequate to deserve encouragement to proceed further.” Id. (quoting Miller- 18 El v. Cockrell, 537 U.S. 322, 336 (2003)). “When the district court denies a habeas petition on procedural grounds without reaching 19 20 the prisoner‟s underlying constitutional claim, a COA should issue when the prisoner shows, at 21 least, that jurists of reason would find it debatable whether the petition states a valid claim of the 22 denial of a constitutional right and that jurists of reason would find it debatable whether the 23 district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) 24 (emphasis added). “Where a plain procedural bar is present and the district court is correct to 25 invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court 26 erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. 27 C. 28 Analysis Whether a certificate of appealability should issue in this case “has two components, one 2 1 directed at the underlying constitutional claims and one directed at the district court‟s procedural 2 holding.” Slack, 529 U.S. at 484-85. Petitioner must prevail on both showings before an appeal 3 can be made. Here, the Court may dispose of the application fairly and promptly by resolving the 4 procedural holding. Id. (“[A] court may find that it can dispose of the application in a fair and 5 prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the 6 record and arguments.”). The Court concludes that a certificate should not issue because 7 reasonable jurists could not debate that independent and adequate state law grounds regarding the 8 untimeliness of her petition supported her conviction. 9 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 12 For the Northern District of California petition on January 8, 2016, stating, in part that “the present petition is not timely. (See In re 11 United States District Court 10 specifically held that California‟s bar against untimely state habeas petitions is “adequate” to 13 support a judgment denying federal habeas relief, even if the state court‟s summary disposition 14 merely cites to In re Clark. See Walker v. Martin, 562 U.S. 307, 321 (2011). Indeed, the Court 15 explicitly held that “[a] summary denial citing Clark and Robbins means that the petition is 16 rejected as untimely.” Id. at 313. In this case, the Superior Court not only cited the relevant cases, 17 but explicitly stated “the present petition is not timely.” See Docket No. 31 at 2. Gallego‟s 18 subsequent attempts to bring the same petition before the California Court of Appeals and 19 California Supreme Court were denied in a summary manner without explanation; accordingly, it 20 is proper to assume that they were also based on the petition‟s untimeliness. See Ylst v. 21 Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state judgment 22 rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same 23 claim rest upon the same ground. [. . .] [W]here, as here, the last reasoned opinion on the claim 24 explicitly imposes a procedural default, we will presume that a later decision rejecting the claim 25 did not silently disregard that bar and consider the merits.”). Thus, it was clear and unambiguous 26 that independent and adequate state law grounds existed to reject the petition. 27 28 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 3 1 untimeliness of her habeas petitions. Accordingly, under Slack, Petitioner‟s request for a 2 certificate of appealability is properly denied without reaching the merits of her ineffective 3 assistance of counsel claim. 4 5 IT IS SO ORDERED. 6 7 8 9 Dated: August 22, 2017 ______________________________________ EDWARD M. CHEN United States District Judge 10 12 For the Northern District of California United States District Court 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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