Arellano v. Paramo

Filing 178

ORDER: The Certificate of Appealability as to ECF No. 174 is DENIED. Signed by Judge William Q. Hayes on 10/8/2020. (USCA Case Number 20-55895. 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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RAUL ARELLANO

Case No.: 17-cv-0354-WQH-MDD
Petitioner,

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v.

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ORDER

DANIEL PARAMO
Respondent.

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HAYES, Judge:

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On February 21, 2017, Petitioner Raul Arellano, a state prisoner proceeding pro se,

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filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF. No. 1).

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On October 26, 2018, this Court entered an Amended Judgment in this matter, granting the

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Motion to Dismiss the First Amended Petition and certifying for appeal grounds one and

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two. (ECF No. 84). Petitioner appealed, and the Ninth Circuit Court of Appeals dismissed

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Petitioner’s appeal for untimely filing and lack of jurisdiction on June 27, 2019. (ECF No.

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98).

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On August 12, 2019, this Court issued an Order, denying Petitioner’s request that

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this Court “restart” the time to file an appeal and denying Petitioner’s second request for a

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copy of ECF No. 80. (ECF No 103). On September 17, 2019, this Court issued an Order

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denying Petitioner’s Motion to Amend and denying Petitioner’s Motion to Appoint

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Counsel. (ECF No. 108). On September 30, 2019, this Court issued an Order denying
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Petitioner’s Motion to Reopen Case pursuant to Rule 60(b). (ECF No. 114). This Court

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found that “Petitioner ha[d] not presented sufficient evidence to support a claim that

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mistake, inadvertence, surprise, or excusable neglect occurred in this case or any other

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reason that justifies relief.” Id. at 3.

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On October 7, 2019, this Court issued an Order denying Petitioner’s Rule 60(b)(4)

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Motion and denying Petitioner’s Motion for the Court to Remove De Novo a Double

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Jeopardy Claim. (ECF No. 117). On October 31, 2019, this Court issued an Order denying

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a Certificate of Appealability as to this Court’s September 17, 2019 Order denying

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Petitioner’s Motion to Amend and denying Petitioner’s Motion to Appoint Counsel. (ECF

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No. 129). On November 1, 2019, this Court issued a minute entry denying Petitioner’s

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Motion to Open the Case, Motion for Court to Rehear, Motion for Reconsideration, and

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Motion for a Rule 60(b) Hearing. (ECF No. 131). On December 4, 2019, this Court issued

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an Order denying Certificates of Appealability as to this Court’s October 7, 2019 Order

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denying Petitioner’s Rule 60(b)(4) Motion and denying Petitioner’s Motion for the Court

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to Remove De Novo a Double Jeopardy Claim and as to this Court’s November 1, 2019

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minute entry denying Petitioner’s Motion to Open the Case, Motion for Court to Rehear,

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Motion for Reconsideration, and Motion for a Rule 60(b) Hearing. (ECF No. 142).

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On December 16, 2019, this Court issued a minute entry denying Petitioner’s

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Motions for Reconsideration. (ECF No. 145). On February 3, 2020, this Court issued a

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minute entry denying Petitioner’s Motion for Copies and Motion to be Sent a Copy of ECF

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No. 144. (ECF No. 151). On March 30, 2020, this Court issued a minute entry denying

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Petitioner’s Motion for Rehearing and Motion to be Sent a Copy. (ECF No. 162). On May

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20, 2020, this Court issued a minute entry denying Petitioner’s Motion for Copies and

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Motion-Court Failed to Hear Motion. (ECF No. 169). On July 24, 2020, this Court issued

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a minute entry denying Petitioner’s 60(b) Motion and Motion: to be Sent Summary Docket

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from This Past 3 Months. (ECF No. 174).

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On August 27, 2020, Petitioner filed a Notice of Appeal as to this Court’s July 24,

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2020 minute entry denying Petitioner’s 60(b) Motion and Motion: to be Sent Summary
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Docket from This Past 3 Months. (ECF No. 175). On September 2, 2020, the Court of

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Appeals issued an order stating that

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The district court has not issued or declined to issue a certificate of
appealability in this appeal, which appears to arise from the denial of
petitioner’s motion for relief from judgment pursuant to Federal Rule of Civil
Procedure 60(b). See Lynch v. Blodgett, 999 F.2d 401, 403 (9th Cir. 1993)
(certificate of probable cause to appeal necessary to appeal denial of postjudgment motion for relief under Rule 60(b)). Accordingly, this case is
remanded to the district court for the limited purpose of granting or denying a
certificate of appealability at the court’s earliest convenience. See 28 U.S.C.
§ 2253(c); Fed. R. App. P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270
(9th Cir. 1997).
If the district court issues a certificate of appealability, the court should
specify which issue or issues meet the required showing. See 28 U.S.C. §
2253(c)(3); Asrar, 116 F.3d at 1270. Under Asrar, if the district court declines
to issue a certificate, the court should state its reasons why a certificate of
appealability should not be granted, and the Clerk of the district court shall
forward to this court the record with the order denying the certificate. See
Asrar, 116 F.3d at 1270.

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(ECF No. 177 at 1-2).
Rule 11 of the Rules Following 28 U.S.C. § 2254 requires district courts to “issue or
deny a certificate of appealability when it enters a final order adverse to the applicant.”
Rule 11, 28 U.S.C. foll. § 2254. A certificate of appealability will issue when the petitioner
makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253;
Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005). A “substantial showing” requires a
demonstration that “reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Beaty v. Stewart, 303 F.3d 975, 984 (9th Cir.
2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
This Court concludes that Petitioner has not made the required showing. Petitioner
has failed to make a “substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253; Pham, 400 F.3d at 742. Petitioner has not presented sufficient evidence to support
a claim that “mistake, inadvertence, surprise, or excusable neglect” occurred in this case or
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“any other reason that justifies relief.” Fed. R. Civ. P. 60(b). The requirement of timely

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notice of appeal is jurisdictional. See United States v. Sadler, 480 F.3d 932, 937 (9th Cir.

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2007). The Certificate of Appealability as to ECF No. 174 is DENIED.

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Dated: October 8, 2020

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