Figueroa v. Lea

Filing 24

ORDER denying 21 Petitioner's Application for Certificate of Appealability; granting 23 Petitioner's Motion to Stay Enforcement of September 21, 2011 Order. For the reasons set forth above, the Court ORDERS as follows: (i) The Court DEN IES Petitioner's request for the Court to issue a certificate of appealability;(ii) The Court GRANTS Petitioner's motion to stay enforcement of the Court's September 21, 2011 Order until his appeal is terminated. Signed by Judge Michael M. Anello on 10/28/2011. (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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JOSE FIGUEROA,

CASE NO. 10 CV 2274 MMA (JMA)
Plaintiff,

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ORDER DENYING
PETITIONER’S APPLICATION
FOR CERTIFICATE OF
APPEALABILITY

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vs.
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[Doc. No. 21]
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GRANTING PETITIONER’S
MOTION TO STAY
ENFORCEMENT OF
SEPTEMBER 21, 2011 ORDER

MELISSA LEA, Warden,

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Defendant.

[Doc. No. 23]

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BACKGROUND

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On November 3, 2010, Petitioner Jose Alfredo Figueroa, a state prisoner proceeding pro

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se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his

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February 1, 2008 state court conviction. [Doc. No. 1.]1 On November 29, 2010, Petitioner filed a

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motion to proceed IFP, which the Court granted on December 13, 2010. [Doc. Nos. 5, 6.] On

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February 16, 2011, Petitioner filed a motion to stay and abey his entire federal habeas petition

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while he returns to state court to exhaust his remedies with respect to six unexhausted claims in the

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mixed petition. [Doc. No. 8.] Respondent filed a response to Petitioner’s motion on April 27,

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The facts underlying Petitioner’s state conviction and his subsequent challenges to the
conviction are set forth in Judge Adler’s Report and Recommendation [Doc. No. 15] and the
undersigned’s Order adopting the report [Doc. No. 19].
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2011. [Doc. No. 13.] The matter was referred to United States Magistrate Judge Jan M. Adler for

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preparation of a Report and Recommendation under 28 U.S.C. § 636(b) and Civil Local Rule

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72.1(d). On September 21, 2011, the undersigned adopted the Report and Recommendation in its

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entirety. The Court granted Petitioner’s motion to stay and abey, in part, with respect to his

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exhausted first and second grounds for relief. The Court denied Petitioner’s motion to stay and

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abey, in part, with respect to the six unexhausted claims based on the finding that Petitioner failed

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to demonstrate good cause for his delay in pursuing these six additional grounds for relief. [Doc.

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No. 19.]

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CERTIFICATE OF APPEALABILITY
On October 25, 2011, Petitioner filed a notice of appeal, together with several motions,

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including a request for this Court to issue a certificate of appealability. [Doc. No. 21.] “The

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district court must issue or deny a certificate of appealability when it enters a final order adverse to

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the applicant.” Rule 11 foll. 28 U.S.C. § 2254 (emphasis added). A petitioner may not seek an

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

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of appealability from a district judge or a circuit judge under 28 U.S.C. § 2253. Fed. R. App. P.

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22(b). Upon due consideration, the Court concludes a certificate of appealability should not issue.

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For the reasons set forth in the Report and Recommendation and the Court’s September 21,

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2011 Order adopting the Report, the Court finds reasonable jurists would not find it debatable that

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Petitioner has not shown an entitlement to federal habeas corpus relief as to his six unexhausted

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claims. 28 U.S.C. § 2253; Fed. R. App. P. 22(b). Accordingly, the Court declines to issue a

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certificate of appealability, and DENIES Petitioner’s motion [Doc. No. 21].
MOTION TO STAY

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Petitioner also filed a motion to stay enforcement of the Court’s September 21, 2011 Order

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adopting the Report and Recommendation pending his appeal. Although the Court does not find a

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certificate of appealability should issue, and therefore an appeal is not warranted, the Court will

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stay Petitioner’s time to withdraw his unexhausted claims as set forth in the Court’s September 21

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Order until his appeal is terminated. Accordingly, Petitioner’s motion to stay [Doc. No. 23] is

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GRANTED.
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CONCLUSION

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For the reasons set forth above, the Court ORDERS as follows:

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(i)

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The Court DENIES Petitioner’s request for the Court to issue a certificate of
appealability [Doc. No. 21];

(ii)

The Court GRANTS Petitioner’s motion to stay enforcement of the Court’s
September 21, 2011 Order until his appeal is terminated [Doc. No. 23].

IT IS SO ORDERED.

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DATED: October 28, 2011
Hon. Michael M. Anello
United States District Judge

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