Elerick v. Knipp

Filing 13

ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND DENYING CERTIFICATE OF APPEALABILITY by Judge Phyllis J. Hamilton granting 8 Motion to Dismiss; denying 11 Motion to Stay. (Attachments: # 1 Certificate/Proof of Service) (nahS, COURT STAFF) (Filed on 1/3/2014)

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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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GARY R. ELERICK,
Petitioner,

KNIPP,

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For the Northern District of California

ORDER GRANTING
RESPONDENT'S MOTION TO
DISMISS AND DENYING
CERTIFICATE OF
APPEALABILITY

vs.

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United States District Court

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No. C 13-0744 PJH (PR)

Respondent.

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This is a habeas case brought pro se by a state prisoner under 28 U.S.C. § 2254.
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Respondent has filed a motion to dismiss on the grounds that the petition is successive.
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Petitioner has not filed an opposition, but has filed a motion to stay. For the reasons set
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forth below, the motion to dismiss is granted.
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DISCUSSION
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Successive Petitions
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“A claim presented in a second or successive habeas corpus application under
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section 2254 that was not presented in a prior application shall be dismissed....” 28 U.S.C.
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§ 2244(b)(2). This is the case unless,
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(A) the applicant shows that the claim relies on a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable; or

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(B) (i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.

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28 U.S.C. § 2244(b)(2).
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However, “[b]efore a second or successive application permitted by this section is

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filed in the district court, the applicant shall move in the appropriate court of appeals for an

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order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).

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Petitioner pleaded no contest in Santa Clara County Superior Court case CC577645

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and on March 7, 2007, was sentenced to prison for 28 years to life and a consecutive term

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of 25 years. Plaintiff appealed the conviction and later filed a federal habeas petition in this

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court, Elerick v. Martel, No. C 09-1354 PJH (PR). The court denied the habeas petition on

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the merits on October 25, 2010, and denied a certificate of appealability. The Ninth Circuit

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also denied a certificate of appealability on April 27, 2012.
The instant federal petition is successive as it again concerns petitioner’s conviction

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For the Northern District of California

United States District Court

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in Santa Clara County Superior Court case CC577645. Before petitioner can proceed with

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the instant application, he must move in the Ninth Circuit for an order authorizing the district

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court to consider the application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner's

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application must be dismissed to its refiling upon obtaining authorization from the Ninth

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Circuit. Petitioner does not contest that the petition is successive, but seeks a motion to

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stay. As the petition is successive, petitioner’s motion for a stay is denied as unnecessary

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and he may re-file this case if he receives authorization from the Ninth Circuit.

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CONCLUSION

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1. Respondent’s motion to dismiss (Docket No. 8) is GRANTED as discussed

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above. The petition is DISMISSED. The clerk shall close the file.
2. Petitioner’s motion to stay (Docket No. 11) is DENIED.

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APPEALABILITY

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The federal rules governing habeas cases brought by state prisoners require a

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district court that enters a final order adverse to the petitioner to grant or deny a certificate

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of appealability in the order. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C.

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foll. § 2254.

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A petitioner may not appeal a final order in a federal habeas corpus proceeding
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 on statute of limitations grounds,

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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

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

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For the Northern District of California

United States District Court

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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

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jurisprudence “allows and encourages” federal courts to first resolve the procedural issue,

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as was done here. See id.

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Here, the court declines to issue a COA regarding the procedural holding or the

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underlying claim as reasonable jurists would not find the court’s findings debatable. The

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court therefore DENIES a COA.

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IT IS SO ORDERED.
Dated: January 3, 2014.
PHYLLIS J. HAMILTON
United States District Judge

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G:\PRO-SE\PJH\HC.13\Elerick0744.mtd.wpd

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