Brown-Seals v. Jaquez

Filing 9

ORDER DISMISSING CASE AND DENYING CERTIFICATE OF APPEALABILITY by Judge Phyllis J. Hamilton granting 7 Motion. (Certificate of Service Attached) (napS, COURT STAFF) (Filed on 11/3/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MICHAEL I BROWN-SEALS,
Petitioner,

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v.
FRANCISCO JAQUEZ,
Respondent.

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United States District Court
Northern District of California

Case No.16-cv-04763-PJH
ORDER DISMISSING CASE AND
DENYING CERTIFICATE OF
APPEALABILITY
Re: Dkt. No. 7

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Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. Petitioner challenged a 2005 conviction from the Lake

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County Superior Court. However, court records indicated that petitioner already filed a

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habeas petition in this court challenging the same conviction. See Seals v. Jaquez, Case

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No. 10-cv-3707-PJH. That case was dismissed with prejudice as barred by the statute

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of limitations and was affirmed by the Ninth Circuit. The court ordered petitioner to show

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cause why this case should not be dismissed as a successive petition. He has filed a

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response.

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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

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U.S.C. § 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
(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 convin
a
ncing evide
ence that, but for
constitution
nal error, no reason
nable factf
finder wou
uld have
found the applicant gu of the u
a
uilty
underlying offense.

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28 U.S.C. § 2244(b)(2).
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“Before a second or success
e
sive applica
ation permit
tted by this section is f
filed in the
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dis
strict court, the applica shall mo in the a
ant
ove
appropriate court of ap
ppeals for an order
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authorizing th district co to cons
he
ourt
sider the ap
pplication.” 28 U.S.C. § 2244(b)(
(3)(A).
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Pe
etitioner stat that he recently file a reques with the N
tes
ed
st
Ninth Circu and is wa
uit
aiting for a
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res
sponse. Th case is dismissed without prejjudice and petitioner m procee with a
his
d
w
may
ed
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suc
ccessive pe
etition if he obtains permission fro the Circ
om
cuit.
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CONCLU
USION
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1.

Petitioner’s motion for an extens
s
r
sion (Docke No. 7) is G
et
GRANTED and the
D

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United States District Court
Northern District of California

res
sponse is deemed time filed.
ely
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2.

The petition is DISMIS
SSED witho prejudic for the re
out
ce
easons stat above.
ted

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Be
ecause reas
sonable jurists would not find the result here debatable a certifica of
n
e
e,
ate
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appealability (“COA”) is DENIED. See Slack v McDanie 529 U.S. 473, 484-8 (2000)
S
v.
el,
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(standard for COA). The clerk shall close the file.
e
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IT IS SO ORDER
S
RED.
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Da
ated: Novem
mber 3, 201
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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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\\can
ndoak.cand.circ9
9.dcn\data\users\PJHALL\_psp\2
2016\2016_04763
3_Brown-Seals_
_v_Jaquez_(PSP
P)\16-cv-04763-P
PJH-dis.docx

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2

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UNITED STATES D
D
DISTRICT C
COURT

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NORTHER DISTRIC OF CALI
RN
CT
IFORNIA

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MICHAEL I BROWN-SE
M
B
EALS,

Case No. 1
16-cv-04763
3-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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FR
RANCISCO JAQUEZ,
O
.
Defendant.

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United States District Court
Northern District of California

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I, the un
ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S.
ee
ice
Dis
strict Court, Northern Di
istrict of Cal
lifornia.
That on November 3, 2016, I SERVED a tr and corre copy(ies) of the attac
n
rue
ect
)
ched, by
pla
acing said co
opy(ies) in a postage paid envelope a
d
addressed to the person(s hereinafte listed, by
s)
er
dep
positing said envelope in the U.S. Mail, or by pla
d
n
M
acing said co
opy(ies) into an inter-off delivery
o
ffice
y
rec
ceptacle loca in the Cl
ated
lerk's office.
.

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Mi
ichael I Brow
wn-Seals ID: #V-77488
:
Pel
lican Bay State Prison C-1-A#102 SHU
C
P.O Box 7500
O.
0
Cre
escent City, CA 95532-7
7000

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ated: Novemb 3, 2016
ber
Da

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Su
usan Y. Soon
ng
Cl
lerk, United States Distr Court
d
rict

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By
y:_________
___________
_______
N
Nichole Peric Deputy Cle to the
c,
erk
H
Honorable PH
HYLLIS J. H
HAMILTON
N

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