Diaz v. Cate

Filing 12

ORDER Denying Certificate of Appealability. Signed by Judge M. James Lorenz on 1/23/2014.(sjt)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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11 THOMAS ANTHONY DIAZ
Petitioner,

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14 JEFFREY BEARD,
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Respondent.

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Civil No. 13cv1438 L (MDD)
ORDER DENYING CERTIFICATE
OF APPEALABILITY

Petitioner Thomas Anthony Diaz, who is represented by counsel, filed a Petition for Writ

18 of Habeas Corpus under 28 U.S.C. § 2254. The matter was referred to United States Magistrate
19 Judge Mitchell D. Dembin for a Report and Recommendation ("Report"). See 28 U.S.C. §
20 636(b)(1)(B) and Civil Local Rule 72.3. The magistrate judge issued a Report recommending the
21 petition be denied and requiring objections, if any, to the Report to be filed no later than January
22 13, 2014. [doc. #7] Petitioner timely filed objections to the Report. The Court reviewed the
23 findings of the magistrate judge de novo as required by 28 U.S.C. § 636(b)(1) and thereafter,
24 adopted the Report, overruled the objections, and granted respondent’s motion to dismiss the
25 petition as untimely. The Court did not, however, make a finding concerning whether a
26 Certificate of Appealability should issue. With this Order, the Court finds and concludes that a
27 COA should not issue in this matter.
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“A certificate of appealability should issue only if the petitioner has made a substantial
13cv1438

1 showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). "The COA determination
2 under §2253(c) requires an overview of the claims in the habeas petition and a general
3 assessment of their merits." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). A COA is
4 authorized "if the applicant has made a substantial showing of the denial of a constitutional
5 right." 28 U.S.C. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists
6 of reason could disagree with the district court's resolution of his constitutional claims or that
7 jurists could conclude the issues presented are adequate to deserve encouragement to proceed
8 further." Miller-El, 537 U.S. at 327, citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
9 Petitioner does not have to show "that he should prevail on the merits. He has already failed in
10 that endeavor." Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 1983), citing Barefoot v.
11 Estelle, 463 U.S. at 880, 893 n.4 (1983)). Nevertheless, issuance of the COA "must not be pro
12 forma or a matter of course," and a "prisoner seeking a COA must prove ‘something more than
13 the absence of frivolity' or the existence of mere ‘good faith' on his or her part." Miller-El, 537
14 U.S. at 337-38, quoting Barefoot, 463 U.S. at 893).
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In the present case, the Court did not consider the merits of the petition but instead,

16 determined that under AEDPA, the petition was not timely filed. Petitioner argued that under
17 Houston v. Lack, 108 S. Ct. 2379 (1988), his petition should be considered timely because it was
18 constructively filed before the deadline. But the Court determined that constructive filing was
19 not applicable in this case as petitioner was represented by counsel throughout the proceedings.
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Petitioner also argued for the application of equitable tolling under Holland v. Florida,

21 130 S. Ct. 2549 (2010). However, petitioner did not provide any facts to demonstrate that some
22 extraordinary circumstance stood in his way which prevented the timely filing of his petition.
23 Instead it appeared that counsel failed to adequately monitor for a significant period of time.
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13cv1438

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Based on the foregoing, Petitioner has not made a substantial showing of the denial of a

2 constitutional right as required by 28 U.S.C. § 2253(c)(2). The Court therefore declines to issue
3 a certificate of appealability.
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IT IS SO ORDERED.

5 DATED: January 23, 2014
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M. James Lorenz
United States District Court Judge

8 COPY TO:
9 HON. MITCHELL D. DEMBIN
UNITED STATES MAGISTRATE JUDGE
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