Rodriguez v. Greco et al

Filing 14

ORDER Declining to Issue Certificate of Appealability. In sum, in response to the Ninth Circuit's 12 order, the Court declines to issue a certificate of appealability from either (a) its order dismissing the Petition without prejudice or (b) i ts order denying Petitioner's Rule 60(b) motion. The Court therefore also DENIES 11 Petitioner's motion for a certificate of appealability. Signed by Judge Cynthia Bashant on 5/8/2017. (USCA Case Number 17-55267. Order electronically transmitted to the 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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PEDRO RODRIGUEZ,
Petitioner,

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Case No. 16-cv-03131-BAS-MDD
ORDER DECLINING TO ISSUE
CERTIFICATE OF
APPEALABILITY

v.
DA MATT GRECO, et al.,

[ECF Nos. 11, 12]

Respondents.

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Petitioner Pedro Rodriguez, a state prisoner proceeding pro se, filed a Petition

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for Writ of Habeas Corpus under 28 U.S.C. § 2254. On January 12, 2017, the Court

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dismissed the Petition for two reasons. (ECF No. 2.) First, the Court noted Petitioner

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had failed to pay the filing fee and had not moved to proceed in forma pauperis. (Id.)

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Second, the Court concluded it is barred from considering Petitioner’s claims under

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the abstention doctrine announced in Younger v. Harris, 401 U.S. 37 (1971). The

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Court reasoned this doctrine bars consideration of Petitioner’s claims because his

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criminal case is still ongoing in state court, the state criminal proceedings involve

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important state interests, and Petitioner fails to demonstrate he has not been afforded

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an adequate opportunity to raise his claims in the state proceeding. (Id.) Further,

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Petitioner had not demonstrated extraordinary circumstances that would relieve the

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Court of its obligation to abstain from ongoing state criminal proceedings. (Id.) Thus,
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the Court dismissed the Petition without prejudice. (Id.) The Court later denied a

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motion for relief from judgment under Federal Rule of Civil Procedure 60(b). (ECF

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No. 8)

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On February 27, 2017, Petitioner appealed the Court’s dismissal of his

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Petition. (ECF No. 9.) He also filed on March 1, 2017, a motion for a certificate of

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appealability. (ECF No. 11.) On March 13, 2017, the Ninth Circuit issued an order

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(i) noting that this Court had not issued or declined to issue a certificate of

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appealability and (ii) remanding this case “for the limited purpose of granting or

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denying a certificate of appealability.” (ECF No. 12.)

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I.

Appeal from Order Dismissing Petition

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A petitioner may not appeal “the final order in a habeas corpus proceeding in

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which the detention complained of arises out of process issued by a State court”

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unless “a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. §

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2253(c). “A certificate of appealability may issue . . . only if the applicant has made

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a substantial showing of the denial of a constitutional right.” Id. In Slack v. McDaniel,

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529 U.S. 473, 484 (2000), the Supreme Court articulated a two-part standard

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governing the issuance of a certificate of appealability when a district court denies a

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habeas petition on procedural grounds. The Court stated:
When the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a
[certificate of appealability] should issue when the prisoner shows, at
least, [1] that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and [2] that
jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.

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Id.

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Here, the Court principally dismissed the Petition because the Court concluded

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it is barred from considering Petitioner’s claims based on Younger abstention. (ECF

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No. 2 at 2:25–3:2.) Given that the Court did not reach the merits of Petitioner’s
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claims, the Court’s decision constitutes a dismissal on procedural grounds. See Slack,

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529 U.S. at 484; accord Strickland v. Wilson, 399 F. App’x 391, 395 (10th Cir. 2010)

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(noting dismissal based on Younger abstention was a dismissal on procedural grounds

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for certificate of appealability purposes). In applying the two-part standard

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mentioned above, the Court finds issuing a certificate of appealability from its order

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of dismissal is not appropriate. Reasonable jurists would not find debatable both

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whether (1) the petition states a valid claim of the denial of a constitutional right and

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(2) this Court’s procedural ruling was correct. See Slack, 529 U.S. at 484. Thus, the

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Court declines to issue a certificate of appealability from its order dismissing the

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Petition without prejudice. See 28 U.S.C. § 2253(c).

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II.

Appeal from Order Denying Rule 60(b) Motion

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In Lynch v. Blodgett, 999 F.2d 401, 402–03 (9th Cir. 1993), the Ninth Circuit

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held that a certificate of probable cause—the predecessor to the certificate of

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appealability under the former version of 28 U.S.C. § 2253—was required to appeal

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the denial of a Rule 60(b) motion in a 28 U.S.C. § 2254 habeas proceeding. Since the

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revision to 28 U.S.C. § 2253 as part of the Antiterrorism and Effective Death Penalty

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Act of 1996 (“AEDPA”), the Ninth Circuit has only “implicitly held” that a petitioner

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must now obtain a certificate of appealability in this context. See United States v.

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Winkles, 795 F.3d 1134, 1140 (9th Cir. 2015) (discussing Langford v. Day, 134 F.3d

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1381 (9th Cir.1998)). That said, in United States v. Winkles, the Ninth Circuit held a

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petitioner must obtain a certificate of appealability to appeal the denial of a Rule

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60(b) motion in an analogous context—a habeas proceeding under 28 U.S.C. § 2255.

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795 F.3d at 1143. In that context, the court held a certificate should issue “if the

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movant shows that (1) jurists of reason would find it debatable whether the district

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court abused its discretion in denying the Rule 60(b) motion and (2) jurists of reason

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would find it debatable whether the underlying section 2255 motion states a valid

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claim of the denial of a constitutional right.” Id.
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Several district courts have since concluded the Ninth Circuit’s reasoning in

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Winkles for habeas proceedings under 28 U.S.C. § 2255 is equally applicable to those

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under 28 U.S.C. § 2254. E.g., Sakellaridis v. Davey, No. 15-cv-01154-DAD-EPG-

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HC, 2017 WL 272216, at *2 (E.D. Cal. Jan. 20, 2017); Adams v. Hedgpeth, No. LA

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CV-1103852 VBF-FFM, 2016 WL 4035607, at *14 (C.D. Cal. June 8, 2016); Ceja

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v. Scribner, No. LA CV 07-00606-VBF-KES, 2016 WL 3996152, at *8 (C.D. Cal.

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Jan. 19, 2016). This Court agrees. In Winkles, the Ninth Circuit noted that “section

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2255 ‘was intended to mirror § 2254 in operative effect,’ and that the language used

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in sections 2253(c)(1)(A) and (c)(1)(B) is functionally identical.” 795 F.3d at 1141

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(quoting Jones v. Ryan, 733 F.3d 825, 830 n.1 (9th Cir. 2013)). Accordingly, the

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Court will adapt the standard from Winkles for § 2255 proceedings and apply it to the

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Court’s denial of Petitioner’s Rule 60(b) motion in this § 2254 proceeding.

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The Court denied Petitioner’s Rule 60(b) motion because it concluded he had

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not demonstrated the requisite extraordinary circumstances for relief. (ECF No. 8 at

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2:14–21.) The Court finds Petitioner has not demonstrated that (1) jurists of reason

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would find it debatable whether this Court abused its discretion in denying the Rule

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60(b) motion, and (2) jurists of reason would find it debatable whether the Petition

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states a valid claim of the denial of a constitutional right. See Winkles, 795 F.3d at

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1143. Consequently, the Court declines to issue a certificate of appealability from its

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order denying Petitioner’s Rule 60(b) motion.

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III.

Conclusion

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In sum, in response to the Ninth Circuit’s order (ECF No. 12), the Court

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declines to issue a certificate of appealability from either (a) its order dismissing the

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Petition without prejudice or (b) its order denying Petitioner’s Rule 60(b) motion.

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The Court therefore also DENIES Petitioner’s motion for a certificate of

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appealability (ECF No. 11).

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IT IS SO ORDERED.

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DATED: May 8, 2017

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