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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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JAIME L. ZEPEDA,
Petitioner,

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vs.

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ORDER DENYING PETITIONER’S
MOTIONS TO RECONSIDER, FOR A
CERTIFICATE OF APPEALABILITY,
AND TO PROCEED IN FORMA
PAUPERIS ON APPEAL

MICHAEL STAINER, Warden,
Respondent.

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For the Northern District of California

United States District Court

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No. C 11-1981 PJH (PR)

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This is a habeas case filed pro se by a state prisoner. Petitioner previously had a

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habeas petition in this court that had been denied on the merits. See Zepeda v. Sullivan,

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03-cv-05668 PJH (PR). On August 30, 2011, the court dismissed the petition in this case,

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concluding that it was second or successive and that petitioner had not obtained

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permission from the court of appeals to file it. See 28 U.S.C. § 2244(b)(3)(A) (habeas

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petitioner may not file second or successive petition unless United States Court of Appeals

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issues order authorizing filing). Petitioner has filed a “Motion to Make Additional

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Finding/Alter Findings and Vacate Judgment,” and a combined motion for a certificate of

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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

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order at issue the court thus had before it his position on that point, and rejected that

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position. In the motion for additional findings and to vacate the judgment he largely

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rehashes his arguments, and adds some that are irrelevant, such as that his claim was not

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decided on the merits in state court or that the present petition relies on new facts. The

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motion (document number 15 on the docket) is DENIED.

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Petitioner has not filed a notice of appeal, but has moved for a COA and for leave to

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proceed IFP on appeal. The motion for a certificate of appealability will be treated as a

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notice of appeal, however. See Tinsley v. Borg, 895 F.2d 520, 523 (9th Cir. 1990) (treating

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timely pro se motion for a certificate of probable cause as a timely notice of appeal).

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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). Even when a petition is dismissed on procedural grounds, as here, section

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2253(c)(1) applies. Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Determining whether a

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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

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For the Northern District of California

United States District Court

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district court’s procedural holding.” Id. at 484-85. “When the district court denies a habeas

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petition on procedural grounds without reaching the prisoner’s underlying constitutional

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claim, a COA should issue when the prisoner shows, at least, that jurists of reason would

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find it debatable whether the petition states a valid claim of the denial of a constitutional

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right and that jurists of reason would find it debatable whether the district court was correct

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in its procedural ruling.” Id. at 484. As each of these components is a “threshold inquiry,”

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the federal court “may find that it can dispose of the application in a fair and prompt manner

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if it proceeds first to resolve the issue whose answer is more apparent from the record and

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arguments.” Id. at 485. Supreme Court jurisprudence “allows and encourages” federal

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courts to first resolve the procedural issue, as was done here. See id.

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The only questions here were whether petitioner had a previous habeas petition that

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was directed to the same conviction and that was denied on the merits, and whether he

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had obtained an order from the court of appeals allowing him to file a second petition. That

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the answer to the first is “yes” and the second “no” is not reasonably debatable. The

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request for a certificate of appealability (document number 16) is DENIED. Leave to

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proceed IFP on appeal (also document number 16) is DENIED because the appeal is not

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taken in good faith. See Fed. R. App. P. 24(a)(3) (party proceeding IFP in district court

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may continue IFP on appeal unless district court certifies appeal not taken in good faith); 28
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U.S.C. § 1915(a)(3) (same).

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The clerk shall transmit the file, including a copy of this order, to the court of

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appeals. See Fed. R. App. P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir.

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1997). Petitioner may then ask the court of appeals to issue the certificate and grant leave

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to proceed IFP. See R. App. P. 22(b)(1).

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IT IS SO ORDERED.

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Dated: November 23, 2011.
PHYLLIS J. HAMILTON
United States District Judge

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For the Northern District of California

United States District Court

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