Perry v. Janda et al

Filing 35

ORDER denying 31 and 33 Motions for Reconsideration and denying 32 Motion for Leave to Proceed in forma pauperis on Appeal. On September 11, Petitioner filed a notice of appeal, as well as a motion for issuance of a certificate of appealabil ity, a motion for leave to proceed in forma pauperis on appeal, and a motion for clarification of the Court's order. The Court construes the motion for a certificate of appealability as a motion for reconsideration of the denial of certificate o f appealability, and the motion to clarify the Court's denial of habeas as a motion to reconsider pursuant to Fed. R. Civ. P. 60. There is no basis for reconsideration of the denial of a certificate of appealability, and the motion is therefore DENIED. The Rule 60 motion is therefore DENIED. The motion to proceed in forma pauperis on appeal fails to attach a prison trust account statement, and as such is defective. But Perry was already granted leave to proceed in forma pauperis, and his in forma pauperis status has not been revoked, so his request is moot. The motion is DENIED. Signed by Judge Larry Alan Burns on 9/17/2014. (USCA Case Number 14-56510. Order electronically transmitted to the US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TYLERRE C. PERRY, 12 CASE NO. 12cv2512-LAB (JMA) Petitioner, ORDER DENYING MOTIONS FOR RECONSIDERATION; AND vs. 13 ORDER DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL 14 G. J. JANDA, 15 Respondent. [DOCKET NUMBERS 31, 32, 33.] 16 17 18 On August 18, 2014, the Court denied the petition for writ of habeas corpus, and also 19 denied a certificate of appealability. On September 11, Petitioner filed a notice of appeal, as 20 well as a motion for issuance of a certificate of appealability, a motion for leave to proceed 21 in forma pauperis on appeal, and a motion for clarification of the Court’s order (Docket nos. 22 31, 32, and 33, respectively). The Court construes the motion for a certificate of appealability 23 as a motion for reconsideration of the denial of certificate of appealability, and the motion 24 to clarify the Court’s denial of habeas as a motion to reconsider pursuant to Fed. R. Civ. P. 25 60. 26 Motion for Reconsideration of Denial of Certificate of Appealability 27 The Court’s order denying the petition explained why the applicable standards for 28 habeas relief were far from being met. To summarize, the Court’s ruling was driven by the -1- 12cv2512 1 standard of review required under AEDPA. Even if this Court or another court might have 2 made a different ruling in the first instance, the state courts’ determinations are entitled to 3 deference. 4 The state courts held that, beyond a reasonable doubt, even if any Doyle error 5 occurred, it was harmless beyond a reasonable doubt. Under Cudjo v. Ayers, 698 F.3d 752, 6 678 (9th Cir. 2012), federal courts must deter to this determination unless it was 7 unreasonable. Even if reasonable jurists might have reached a different conclusion about 8 whether the Doyle error (if any) was harmless, reasonable jurists would not find the state 9 court’s determination unreasonable. But more than that, the state courts held that no Doyle 10 error occurred, because no invocation by Perry of his right to remain silent was admitted at 11 trial. The state courts rejected Petitioner’s argument that the trial court erred in admitting 12 other statements made in connection with what Perry argues were invocations of his right 13 to remain silent.1 This argument was based on United States v. Bushyhead, 270 F.3d 905, 14 912 (9th Cir. 2001), finding it both inapplicable to the facts of Perry’s case, and unpersuasive. 15 Because Bushyhead is not ““clearly established Federal law, as determined by the Supreme 16 Court of the United States.” See 28 U.S.C. § 2254(d). The fact that Bushyhead cites and 17 interprets Supreme Court precedent does not change this. 18 These were the only issues in the magistrate judge’s report and recommendation that 19 Perry filed any objections to, and they are they only Perry seeks to appeal. The standard for 20 issuance of a certificate of appealability, see Slack v. McDaniel, 529 U.S. 473, 484 (2000), 21 is not met. There is no basis for reconsideration of the denial of a certificate of appealability, 22 and the motion is therefore DENIED. 23 Fed. R. Civ. P. 60 Motion 24 Perry asks for “clarity for the issues that were overlooked by the Court,” and asks for 25 “the Court’s opinion and ruling” as to three issues: his Doyle claim, his reliance on 26 // 27 28 1 The state courts held these remarks were made voluntarily and not in response to questioning, and this determination is both reasonable and entitled to deference. -2- 12cv2512 1 Wainwright v. Greenfield, 474 U.S. 284 (1986), and his discovery motion filed May 21, 2014. 2 He asks the Court to explain why, in light of these, his petition was denied. 3 The Doyle claim was ruled on in the Court’s order denying the petition, and has also 4 been discussed above. There is no reason for reconsideration, and the Court’s order 5 adequately explains its reasons for rejecting this claim. 6 Perry cited Wainwright in support of his Doyle claim. Wainwright is inapplicable here, 7 and the state courts did not disregard or misapply it.Wainwright stands for the proposition 8 that a defendant’s post-Miranda silence may not be introduced at trial. Perry’s silence was 9 not introduced at his criminal trial. His actual argument asks the Court to apply Bushyhead, 10 whose holding is much closer to being apposite. 11 There was no discovery motion filed on or around May 21, 2014. It’s possible Perry 12 is thinking of his discovery request filed December 26, 2013. The Court denied that on 13 January 10, 2014, explaining its reasons for doing so, and no reconsideration or additional 14 explanation is warranted. In any case, discovery is not warranted, because the Court’s 15 review is limited to the record before the state courts. See Cullen v. Pinholster, ___ U.S. 16 ____, 131 S.Ct. 1388 (2011). 17 18 The Rule 60 motion is therefore DENIED. Motion for Leave to Proceed In Forma Pauperis on Appeal 19 The motion to proceed in forma pauperis on appeal fails to attach a prison trust 20 account statement, and as such is defective. See Rule 3(a)(2) of Rules Governing § 2254 21 Cases in the United States District Courts. But Perry was already granted leave to proceed 22 in forma pauperis, and his in forma pauperis status has not been revoked, so his request is 23 moot. See Fed. R. App. P. 24(a)(3); Naddi v. Hill, 106 F.3d 275, 276 (9th Cir. 1997). The 24 motion is DENIED. 25 26 IT IS SO ORDERED. DATED: September 17, 2014 27 28 HONORABLE LARRY ALAN BURNS United States District Judge -3- 12cv2512

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