-AJB (HC) Downs v. California Board of Prison Terms II

Filing 60

ORDER: (1) denying Certificate of Appealability (Doc. No. 59 ); (2) denying as moot Petitioner's Motion for Discovery (Doc. No. 57 ). The Court DENIES Petitioner's request for a certificate of appealability and DENIES as moot Petitioner's motion for discovery. Signed by Judge Marilyn L. Huff on 5/12/2011. (Order electronically transmitted to US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GREGORY DOWNS,

ORDER:

Petitioner,

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CASE NO. 10-CV-2029 H (MDD)

(1) DENYING CERTIFICATE
OF APPEALABILITY

vs.

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[Doc. No. 59]
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(2) DENYING AS MOOT
PETITIONER’S MOTION FOR
DISCOVERY

DOMINGO URIBE, JR., WARDEN, et
al.,
Respondent.

[Doc. No. 57]

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On September 21, 2010, Gregory Downs (“Petitioner”), a state prisoner proceeding pro

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se, filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254. (Doc.

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No. 1.) On October 25, 2010, Petitioner filed an amended petition. (Doc. No. 7.) On April

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27, 2011, the Court granted Respondent’s motion to dismiss and dismissed Petitioner’s writ

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of habeas corpus as successive. (Doc. No. 55.) On May 10, 2011, Petitioner filed an appeal

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to the Ninth Circuit Court of Appeals. (Doc. No. 58.) On May 10, 2011, Petitioner also filed

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a request for a certificate of appealability. (Doc. No. 57.)

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According to the Federal Rules of Appellate Procedure, a petitioner may not seek an

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appeal of a claim arising out of state court detention unless the petitioner obtains a certificate

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of appealability from either the district judge or a circuit judge under 28 U.S.C. § 2253. See
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Fed. R. App. P. 22(b). Section 2253 states that a certificate of appealability may only issue if

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the petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C.

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§ 2253(c)(1). If the petition is dismissed on procedural grounds without reaching the

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petitioner’s underlying constitutional claim, the court must decide whether “jurists of reason

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

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right” and whether “jurists of reason would find it debatable whether the district court was

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correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000); Lambright v.

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Stewart, 220 F.3d 1022, 1026 (9th Cir. 2000).

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Because each component is a part of the threshold inquiry, the court may dispose of the

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case “in a prompt manner if it proceeds first to resolve the issue whose answer is more

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apparent from the record and arguments.” Slack, 529 U.S. at 485. Therefore, a court does not

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have to address the constitutional question “if there is also present some other ground upon

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which the case may be disposed of.” Id. (quoting Ashwander v. TVA, 297 U.S. 288, 347

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(1936) (Brandeis, J., concurring)).

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In 2009, Petitioner filed two petitions for writ of habeas corpus with the United States

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District Court for the Eastern District of California. See Downs v. Cal. Bd. of Prison Terms,

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No. 09-cv-00715-GSA (HC) (E.D. Cal., filed Mar. 25, 2009); Downs v. Cal. Attorney General,

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No. 09-cv-01104-FCD-GGH (E.D. Cal., filed April 22, 2009). In the first petition, Petitioner

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raised claims relating to his February 1, 2005 and November 30, 2006 parole board hearings

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and the Board’s alleged failure to turn over exculpatory evidence for Petitioner’s parole

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hearings among other claims. See Downs v. Cal. Bd. of Prison Terms, 2009 WL 1312901, at

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*2 (E.D. Cal. May 12, 2009). On May 12, 2009, the district court dismissed the first petition

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on the merits for failure to state a claim. See id. On May 26, 2009, the district court dismissed

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the second petition for being duplicative and frivolous. See Downs v. Cal. Attorney General,

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No. 09-cv-01104-FCD-GGH (E.D. Cal., Order filed Mar. 26, 2009 [Doc. No. 6]). In the

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present petition, Petitioner again challenged the February 1, 2005 and November 30, 2006

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parole board hearings, and the Board’s alleged failure to turn over exculpatory evidence for

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Petitioner’s parole hearings. (Doc. No. 7 at 23-25, 33-37, 42-43.)
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10cv2029

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The Court dismissed Petitioner’s action because Petitioner challenged the same parole

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hearing issues he challenged in his prior habeas corpus petitions without obtaining an order

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from the Ninth Circuit authorizing this Court to consider the successive petition. See 28

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U.S.C. § 2244(b)(3)(A); see also 28 U.S.C. § 2254(b)(1) (“A claim presented in a second or

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successive habeas corpus application under section 2254 that was presented in a prior

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application shall be dismissed.”). In addition, the Court dismissed Petitioner’s other claims

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because those claims could have been raised in that previous petitions. See McNabb v. Yates,

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576 F.3d 1028, 1029 (9th Cir. 2009) (“A habeas petition is second or successive . . . if it raises

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claims that were or could have been adjudicated on the merits.”). Because a successive

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petition is “a plain procedural bar . . . and the district court is correct to invoke it to dispose of

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the case” jurists of reason would not find it debatable whether the Court was correct in its

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procedural ruling. See Slack, 529 U.S. at 484. Therefore, the Court DENIES Petitioner’s

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request for a certificate of appealability.

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On April 8, 2011, Petitioner filed a motion to take depositions pursuant to Federal Rule

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of Civil Procedure 27. (Doc. No. 57.) Because the Court dismissed Petitioner’s writ of habeas

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corpus and denies a certificate of appealability, the Court DENIES as moot Petitioner’s motion

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to take depositions.
Conclusion

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The Court DENIES Petitioner’s request for a certificate of appealability and DENIES
as moot Petitioner’s motion for discovery.
IT IS SO ORDERED.
DATED: May 12, 2011
_________________________________
MARILYN L. HUFF, District Judge
UNITED STATES DISTRICT COURT

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COPIES TO:
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