Flowers v. Foulk

Filing 150

ORDER DENYING CERTIFICATE OF APPEALABILITY Re Docket Nos. 144 and 149 . Signed by Judge Claudia Wilken on 3/23/2022. (bns, COURT STAFF) (Filed on 3/23/2022)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
Northern District of California

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JOSEPH J. FLOWERS,
Petitioner,

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v.

Case No. 14-cv-00589 CW
ORDER DENYING CERTIFICATE
OF APPEALABILITY
(Re: Dkt. Nos. 144, 149)

FRED FOULK,
Respondent.

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On March 18, 2022, the Ninth Circuit remanded this action to the Court for the limited

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purpose of granting or denying a certificate of appealability (COA) with respect to its order of

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September 16, 2021. See Docket No. 149. In that order, the Court denied Petitioner’s motion to

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vacate the judgment under Rules 60(b)(1), (b)(2), (b)(3), and (b)(6) and “reopen” his habeas

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corpus petition on the basis that “Respondent committed fraud on the Court and Petitioner by

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leading the Court and Petitioner to believe, incorrectly, that Respondent ‘had provided a particular

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set of transcripts’ for proceedings that took place on December 9, 2009.’” Order at 2, Docket No.

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144. Petitioner argued that this Court’s ruling that Claim 4 of his federal habeas corpus petition

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was procedurally defaulted under In re Dixon, 41 Cal. 2d 756 (1953), was erroneous because it

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“hinged” on the incorrect assumption that Petitioner could have raised in his direct appeal the

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argument that he was unlawfully deprived of confidential communications with his trial counsel.

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See id. at 5-7. Petitioner further argued that this incorrect assumption was a consequence of

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Respondent’s purported fraudulent representations that he had provided all relevant transcripts to

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Petitioner. Id.

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The Court denied Petitioner’s motion on the grounds that: (1) the motion was untimely to
the extent that it was based on Rules 60(b)(1), (b)(2), or (b)(3), because it was filed more than one

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year after the entry of judgment in this action, which was on September 5, 2017; and (2) it failed

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to the extent that it was based on Rule 60(b)(6), because Petitioner did not show that this Court’s

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holding that Claim 4 was procedurally defaulted was erroneous, as he did not demonstrate that he

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was prevented from raising Claim 4 on direct appeal as a result of Respondent’s purported

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United States District Court
Northern District of California

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fraudulent failure to provide him with all relevant transcripts, including those for December 9,

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2009. See id. at 8-9.
Where, as here, “the district court denies a habeas petition on procedural grounds without

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reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner

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shows, at least, that jurists of reason would find it debatable whether the petition states a valid

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claim 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.” Slack v. McDaniel, 529 U.S. 473,

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484 (2000).

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Here, Petitioner has not shown that reasonable jurists would find it debatable whether the

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Court was correct in reaffirming its ruling that Claim 4 is procedurally defaulted and in denying

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Petitioner’s motion to vacate the judgment. For the reasons discussed in the Court’s September

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16, 2021, order, which the Court incorporates here by reference, nothing in Petitioner’s motion to

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vacate the judgment casts doubt as to the Court’s conclusion that Claim 4 was procedurally

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defaulted on the basis that Petitioner could have, but failed, to raise it on direct appeal. Further,

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Petitioner has not explained what happened during the proceedings on December 9, 2009, if

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anything, that could have demonstrated that he was not able to raise Claim 4 on direct appeal.

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Finally, the transcripts that Respondent filed for proceedings that took place on December 8, 2009,

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show that the trial court considered Petitioner’s argument that his right to confidential

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communications with his trial counsel was being violated. Petitioner does not argue that he lacked

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access to the December 8, 2009, transcripts at the time he was required to file his direct appeal. 1

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Accordingly, the Court DENIES a certificate of appealability.

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IT IS SO ORDERED.

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Dated: March 23, 2022
CLAUDIA WILKEN
United States District Judge

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United States District Court
Northern District of California

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Petitioner appears to argue in his notice of appeal that he lacked access to transcripts for
proceedings that took place on several dates. See Docket No. 147 at ECF page 12. Even if it were
the case that Petitioner, in fact, lacked access to certain transcripts at the time he filed his direct
appeal, that still would not change the Court’s conclusions, because Petitioner has not shown that
he lacked access to other transcripts (such as those for December 8, 2009) that clearly show that
his trial counsel raised the lack of confidentiality in attorney-client communications issue to the
trial court.
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