Gray v. McDonald

Filing 17

ORDER DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Phyllis J. Hamilton on 9/6/11. (Attachments: # 1 Certificate/Proof of Service)(nah, COURT STAFF) (Filed on 9/6/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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GREGORY LEE GRAY,
Petitioner,

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For the Northern District of California

United States District Court

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No. C 10-5748 PJH (PR)

vs.

ORDER DENYING
CERTIFICATE OF
APPEALABILITY

M. McDONALD, Warden,
Respondent.
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This is a habeas case filed pro se by a state prisoner. Petitioner had a previous

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case attacking the same judgment, Gray v. Runnels, C 01-2880 PJH (PR). That case was

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dismissed as barred by the statute of limitations and the dismissal was affirmed on appeal.

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The court dismissed this petition as second or successive, as it had two previous

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cases, Gray v. Felker, 09-2461 PJH (PR), and Gray v. McDonald, 10-0845 PJH (PR). In

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Gray v. McDonald both this court and the court of appeals denied a certificate of

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appealability ("COA”).

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Petitioner filed a notice of appeal. The court of appeals has remanded to allow this
court to decide whether a COA should issue.
A petitioner may not appeal a final order in a federal habeas corpus proceeding

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without first obtaining a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App.

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P. 22(b). Section 2253(c)(1) applies to an appeal of a final order entered on a procedural

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question antecedent to the merits, for instance a dismissal as second or successive, as

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here. See Slack v. McDaniel, 529 U.S. 473, 483 (2000).

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“Determining whether a COA should issue where the petition was dismissed on

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procedural grounds has two components, one directed at the underlying constitutional

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claims and one directed at the district court’s procedural holding.” Id. at 484-85. “When the

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district court denies a habeas petition on procedural grounds without reaching the

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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

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

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whether the district court was correct in its procedural ruling.” Id. at 484. As each of these

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components is a “threshold inquiry,” the federal court “may find that it can dispose of the

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application in a fair and prompt manner if it proceeds first to resolve the issue whose

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answer is more apparent from the record and arguments.” Id. at 485. Supreme Court
jurisprudence “allows and encourages” federal courts to first resolve the procedural issue,

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For the Northern District of California

United States District Court

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as was done here. See id.

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The petition was dismissed because it is indisputable that petitioner had a previous

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habeas case directed to the same conviction, and that he did not obtain an order from the

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court of appeals allowing him to file a new petition. See 28 U.S.C. § 2244(b)(3)(A) (habeas

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petitioner may not file second or successive petition unless he or she first obtains from

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appropriate United States Court of Appeals order authorizing filing). Jurists of reason thus

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would not find the court’s ruling debatable or wrong. A certificate of appealability is

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DENIED.

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As instructed in the order of remand, the clerk shall transmit the record and this
order to the Court of Appeals.

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IT IS SO ORDERED.

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Dated: September 6, 2011.
PHYLLIS J. HAMILTON
United States District Judge

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P:\PRO-SE\PJH\HC.10\GRAY5748.COA.wpd

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