Zepeda v. Stainer

Filing 17

ORDER DENYING PETITIONER'S MOTIONS TO RECONSIDER, FOR A CERTIFICATE OF APPEALABILITY, AND TO PROCEED IN FORMA PAUPERIS ON APPEAL by Judge Phyllis J. Hamilton denying 15 Motion ; denying 16 Motion for Certificate of Appealability (Attachments: # 1 Certificate/Proof of Service) (nah, COURT STAFF) (Filed on 11/23/2011)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 OAKLAND DIVISION 6 7 JAIME L. ZEPEDA, Petitioner, 8 vs. 9 ORDER DENYING PETITIONER’S MOTIONS TO RECONSIDER, FOR A CERTIFICATE OF APPEALABILITY, AND TO PROCEED IN FORMA PAUPERIS ON APPEAL MICHAEL STAINER, Warden, Respondent. 11 For the Northern District of California United States District Court 10 No. C 11-1981 PJH (PR) / 12 13 This is a habeas case filed pro se by a state prisoner. Petitioner previously had a 14 habeas petition in this court that had been denied on the merits. See Zepeda v. Sullivan, 15 03-cv-05668 PJH (PR). On August 30, 2011, the court dismissed the petition in this case, 16 concluding that it was second or successive and that petitioner had not obtained 17 permission from the court of appeals to file it. See 28 U.S.C. § 2244(b)(3)(A) (habeas 18 petitioner may not file second or successive petition unless United States Court of Appeals 19 issues order authorizing filing). Petitioner has filed a “Motion to Make Additional 20 Finding/Alter Findings and Vacate Judgment,” and a combined motion for a certificate of 21 appealability (“COA”) and for leave to proceed in forma pauperis (“IFP”) on appeal. Petitioner argued in his petition that it was not second or successive. In entering the 22 23 order at issue the court thus had before it his position on that point, and rejected that 24 position. In the motion for additional findings and to vacate the judgment he largely 25 rehashes his arguments, and adds some that are irrelevant, such as that his claim was not 26 decided on the merits in state court or that the present petition relies on new facts. The 27 motion (document number 15 on the docket) is DENIED. 28 /// 1 Petitioner has not filed a notice of appeal, but has moved for a COA and for leave to 2 proceed IFP on appeal. The motion for a certificate of appealability will be treated as a 3 notice of appeal, however. See Tinsley v. Borg, 895 F.2d 520, 523 (9th Cir. 1990) (treating 4 timely pro se motion for a certificate of probable cause as a timely notice of appeal). 5 A petitioner may not appeal a final order in a federal habeas corpus proceeding 6 without first obtaining a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App. 7 P. 22(b). Even when a petition is dismissed on procedural grounds, as here, section 8 2253(c)(1) applies. Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Determining whether a 9 COA should issue where the petition was dismissed on procedural grounds has two components, one directed at the underlying constitutional claims and one directed at the 11 For the Northern District of California United States District Court 10 district court’s procedural holding.” Id. at 484-85. “When the district court denies a habeas 12 petition on procedural grounds without reaching the prisoner’s underlying constitutional 13 claim, a COA should issue when the prisoner shows, at least, that jurists of reason would 14 find it debatable whether the petition states a valid claim of the denial of a constitutional 15 right and that jurists of reason would find it debatable whether the district court was correct 16 in its procedural ruling.” Id. at 484. As each of these components is a “threshold inquiry,” 17 the federal court “may find that it can dispose of the application in a fair and prompt manner 18 if it proceeds first to resolve the issue whose answer is more apparent from the record and 19 arguments.” Id. at 485. Supreme Court jurisprudence “allows and encourages” federal 20 courts to first resolve the procedural issue, as was done here. See id. 21 The only questions here were whether petitioner had a previous habeas petition that 22 was directed to the same conviction and that was denied on the merits, and whether he 23 had obtained an order from the court of appeals allowing him to file a second petition. That 24 the answer to the first is “yes” and the second “no” is not reasonably debatable. The 25 request for a certificate of appealability (document number 16) is DENIED. Leave to 26 proceed IFP on appeal (also document number 16) is DENIED because the appeal is not 27 taken in good faith. See Fed. R. App. P. 24(a)(3) (party proceeding IFP in district court 28 may continue IFP on appeal unless district court certifies appeal not taken in good faith); 28 2 1 U.S.C. § 1915(a)(3) (same). 2 The clerk shall transmit the file, including a copy of this order, to the court of 3 appeals. See Fed. R. App. P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 4 1997). Petitioner may then ask the court of appeals to issue the certificate and grant leave 5 to proceed IFP. See R. App. P. 22(b)(1). 6 IT IS SO ORDERED. 7 Dated: November 23, 2011. PHYLLIS J. HAMILTON United States District Judge 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P:\PRO-SE\PJH\HC.11\ZEPEDA1981.COA.wpd 3

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