Hopson v. People of the State of California et al

Filing 11

ORDER denying 7 Request for a Certificate of Appealability; denying as moot 8 Motion to Proceed in forma pauperis. The Court DENIES Petitioner's request for a certificate of appealability and DENIES as moot Petitioner's request to proceed in forma pauperis. Signed by Judge Marilyn L. Huff on 3/11/2011. (USCA Case No. 11-55384. Order electronically transmitted to US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

-POR Hopson v. People of the State of California et al

Doc. 11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 PEOPLE OF THE STATE OF CALIFORNIA, v. SHANNON R. HOPSON, Petitioner, CASE NO. 10-CV-2485 H (POR) ORDER: (1) DENYING REQUEST FOR A CERTIFICATE OF APPEALABILITY (2) DENYING AS MOOT MOTION TO PROCEED IN FORMA PAUPERIS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Respondent. On December 9, 2010, this Court entered judgment denying a petition for writ of habeas

18 corpus brought by Shannon R. Hopson ("Petitioner") pursuant to 28 U.S.C. § 2254. (Doc. No. 19 3.) On February 10, 2011, Petitioner filed a request for a certificate of appealability and a 20 request to proceed in forma pauperis. (Doc. No. 6.) 21 22 BACKGROUND The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner has

23 submitted to this Court challenging his June 25, 2001 conviction in San Diego Superior Court 24 case No. SCD 146596. On June 3, 2003, Petitioner filed in this Court a Petition for Writ of 25 Habeas Corpus. (See Petition filed June 3, 2003 in case 03-cv-1115-K (POR) [Doc. No. 1].) 26 On April 30, 2004, this Court denied the petition on the merits. (See Order filed April 30, 27 2004 in case 03-cv-1115 K (POR) [Doc. No. 30].) Petitioner appealed that determination. On 28
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1 June 20, 2006, the Ninth Circuit Court of Appeals vacated and remanded the appeal with 2 instructions to dismiss Petitioner's Rule 60(b) motion, which the Court previously denied for 3 lack of subject matter jurisdiction. (See Order in Hopson v. Director of Correction, No. 044 57196 (9th Cir. Jul. 31, 2006).) The Court dismissed the Rule 60(b) motion as directed, 5 leaving the order denying the petition intact. 6 On December 1, 2010, Petitioner filed another writ for habeas corpus which also

7 challenged his conviction in San Diego Superior Court case number SCD 146596. (Doc. No. 8 1.) On December 9, 2010, the Court summarily dismissed the Petition as successive pursuant 9 to 28 U.S.C. § 2244(b)(3)(A) gatekeeper provision without reaching the underlying 10 constitutional claims. (Doc. No. 3.) 11 DISCUSSION

12 I. REQUEST FOR A CERTIFICATE OF APPEALABILITY 13 A certificate of appealability is authorized "if the applicant has made a substantial

14 showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). If the petition is 15 dismissed on procedural grounds without reaching the petitioner's underlying constitutional 16 claim, the court must decide whether "jurists of reason would find it debatable whether the 17 petition states a valid claim of the denial of a constitutional right" and whether "jurists of 18 reason would find it debatable whether the district court was correct in its procedural ruling." 19 Slack v. McDaniel, 529 U.S. 473, 478 (2000); Lambright v. Stewart, 220 F.3d 1022, 1026 (9th 20 Cir. 2000). "Where a plain procedural bar is present and the district court is correct to invoke 21 it to dispose of the case, a reasonable jurist could not conclude either that the district court 22 erred in dismissing the petition or that the petitioner should be allowed to proceed further." 23 Slack, 529 U.S. at 484. 24 Because each component is a part of the threshold inquiry, the court may dispose of the

25 case "in a prompt manner if it proceeds first to resolve the issue whose answer is more 26 apparent from the record and arguments." Slack, 529 U.S. at 485. Therefore, a court does not 27 have to address the constitutional question "if there is also present some other ground upon 28 which the case may be disposed of." Id. (quoting Ashwander v. TVA, 297 U.S. 288, 347
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1 (1936) (Brandeis, J., concurring)). 2 The Court dismissed Petitioner's action because Petitioner challenged the same

3 conviction he challenged in a prior habeas corpus petition without obtaining an order from the 4 appropriate court of appeals authorizing the district court to consider the successive petition. 5 See 28 U.S.C. § 2244(b)(3)(A). Because a successive petition without authorization from the 6 appropriate court of appeals is "a plain procedural bar" that the Court was "correct to invoke 7 . . . to dispose of the case," jurists of reason would not find it debatable whether the Court was 8 correct in its procedural ruling. See Slack, 529 U.S. at 484. Accordingly, the Court DENIES 9 Petitioner's request for a certificate of appealability. 10 II. REQUEST TO PROCEED IN FORMA PAUPERIS 11 Because the Court denies Petitioner's request for a certificate of appealability,

12 Petitioner's request to proceed in forma pauperis is moot. Accordingly, the Court DENIES 13 as moot Petitioner's request to proceed in forma pauperis. 14 15 CONCLUSION For the above reasons, the Court DENIES Petitioner's request for a certificate of

16 appealability and DENIES as moot Petitioner's request to proceed in forma pauperis. 17 IT IS SO ORDERED.

18 DATED: March 11, 2011 19 20 21 22 23 24 25 26 27 28
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__________________________________ MARILYN L. HUFF, District Court UNITED STATES DISTRICT COURT