Washington v. People of the State of California et al

Filing 13

ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY. Signed by Judge Claudia Wilken on 8/27/2013. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 8/27/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ROBERT N. WASHINGTON,

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No. C 12-5930 SBA (PR)

Petitioner,

ORDER DENYING REQUEST FOR
CERTIFICATE OF APPEALABILITY

v.
PEOPLE OF CALIFORNIA, et al.,
Respondents.

/

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United States District Court
For the Northern District of California

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Petitioner, a state prisoner, filed this pro se petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254. On June 17, 2013, the Court dismissed the petition on the grounds that it was a

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second petition, successive to his previous case, Washington v. Lamarque, Case No. C 02-2146 MJJ

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(PR) (“2002 petition”). The Court denied the 2002 petition on the merits. Later, Petitioner filed two

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subsequent petitions, which were denied as successive. See Washington v. State of California, Case

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No. C 09-4355 SBA (PR); Washington v. Haviland, Case No. C 09-0978 SBA (PR). In dismissing

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this action, the Court noted that Petitioner had not obtained an order from the Ninth Circuit Court of

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Appeals authorizing the district court to consider his new petition.

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On July 22, 2013, Petitioner filed a notice of appeal. The Court construes Petitioner’s notice

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of appeal as an application for a certificate of appealability (“COA”). See United States v. Asrar,

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116 F.3d 1268, 1270 (9th Cir. 1997); 28 U.S.C. § 2253(c)(3). In an Order dated August 19, 2013,

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the Ninth Circuit remanded the case to the district court “for the limited purpose of granting or

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denying a [COA] at the court’s earliest convenience.” (Ninth Circuit August 19, 2013 Order at 1.)

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DISCUSSION
An appeal may not be taken to the court of appeals from the final order in a habeas corpus

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proceeding unless the petitioner first obtains a COA. See 28 U.S.C. § 2253(c); Fed. R. App. P.

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

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antecedent to the merits, as 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 procedural

grounds has two components, one directed at the underlying constitutional claims and one directed

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at the 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 claim, a

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COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable

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whether the petition states a valid claim of the denial of a constitutional right and that jurists of

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reason would find it debatable whether the district court was correct in its procedural ruling.” Id. at

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484. As each of these components is a “threshold inquiry,” the federal court “may find that it can

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dispose of the 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

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United States District Court
For the Northern District of California

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“allows and encourages” federal courts to first resolve the procedural issue, as was done here. See

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id.

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The petition was dismissed because 28 U.S.C. § 2244(b)(3)(A) requires that petitioners must

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obtain permission from the United States Court of Appeals before filing a second or successive

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petition. Petitioner did not obtain such permission, and he acknowledges that he filed a prior habeas

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case. Because jurists of reason would not find the Court’s conclusion debatable or wrong, the

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motion for a COA is DENIED.

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The Clerk of the Court shall process the notice of appeal and send a copy of this Order to the
Ninth Circuit.
IT IS SO ORDERED.
DATED: 8/27/13
SAUNDRA BROWN ARMSTRONG
UNITED STATES DISTRICT JUDGE

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G:\PRO-SE\SBA\HC.12\Washington5930.COA(DISM-Successive).wpd

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