Elizares v. Taylor
Filing
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ORDER DENYING PETITIONER CALVIN D. ELIZARES' APPLICATION FOR A CERTIFICATE OF APPEALABILITY (ECF No. 7 ). Signed by JUDGE HELEN GILLMOR on 12/15/2016. (eps, )CERTIFICATE OF SERVICEParticipants registere d to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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CALVIN D. ELIZARES
Petitioner,
vs.
JOSEPH TAYLOR,
Respondent.
Civil No. 16-00580 HG-RLP
ORDER DENYING PETITIONER CALVIN D. ELIZARES’ APPLICATION FOR A
CERTIFICATE OF APPEALABILITY (ECF No. 7)
Petitioner Calvin D. Elizares has filed a request for a
Certificate of Appealability.
Petitioner seeks to appeal the
Court’s October 28, 2016 Order Denying, In Part, and Dismissing,
In Part, Petitioner’s Federal Rules of Civil Procedure Rule 60(b)
Motion for Relief from a Final Judgment, Order or Proceeding.
Petitioner’s Application for a Certificate of Appealability
(ECF No. 7) is DENIED.
PROCEDURAL HISTORY
On July 15, 2016, Petitioner Calvin D. Elizares filed a
motion entitled FEDERAL RULES OF CIVIL PROCEDURE 60(b): MOTION
FOR RELIEF FROM A FINAL JUDGMENT, ORDER, OR PROCEEDING.
1).
1
(ECF No.
On October 28, 2016, this Court issued an ORDER DENYING, IN
PART, AND DISMISSING, IN PART, PETITIONER CALVIN D. ELIZARES’
FEDERAL RULES OF CIVIL PROCEDURE RULE 60(b) MOTION FOR RELIEF
FROM A FINAL JUDGMENT, ORDER OR PROCEEDING.
(ECF No. 5).
The Court found that Petitioner’s Motion contained both a
FEDERAL RULE OF CIVIL PROCEDURE RULE 60(b) Motion and a second or
successive habeas petition filed pursuant to 28 U.S.C. § 2254.
(Order at p. 11, ECF No. 5).
The Order denied the Rule 60(b)
Motion and dismissed the portion of Petitioner’s Motion that was
an unauthorized second or successive 2254 Petition.
(Id.)
On November 29, 2016, Petitioner filed an APPLICATION FOR A
CERTIFICATE OF APPEALABILITY.
(ECF No. 7).
REQUIREMENT FOR A CERTIFICATE OF APPEALABILITY
Certificate of Appealability for the Denial of a Rule 60(b)
Motion
The United States Supreme Court has declined to decide if a
habeas petitioner must obtain a certificate of appealability as a
prerequisite to appealing the denial of a Rule 60(b) Motion.
Gonzlez v. Crosby, 545 U.S. 524, 535 n.7 (2005).
The Ninth Circuit Court of Appeals has concluded that a
certificate of appealability is required if a petitioner seeks
review of the denial of a Rule 60(b) Motion relating to
underlying habeas corpus proceedings.
United States v. Winkles,
795 F.3d 1134, 1142 (9th Cir. 2015); see West v. Schneiter, 485
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F.3d 393, 394 (7th Cir. 2007); Langford v. Day, 134 F.3d 1381,
1382 (9th Cir. 1998).
Certificate of Appealability for the Dismissal of an Unauthorized
Second or Successive Habeas Petition
There is no appeal as of right for state prisoners in habeas
corpus proceedings under Section 2254.
2253(c)(1)(A).
28 U.S.C. §
A petitioner challenging “the final order in a
habeas corpus proceeding” must obtain a certificate of
appealability. Id.; Harbison v. Bell, 556 U.S. 180, 183 (2009).
The phrase “final order in a habeas proceeding” has been
interpreted broadly to include proceedings beyond a district
court’s order denying the petition for habeas corpus itself.
Winkles, 795 F.3d at 1139.
Federal appellate courts have held that a certificate of
appealability is required to appeal an order dismissing an
unauthorized second or successive habeas petition.
Sveum v.
Smith, 403 F.3d 447, 448 (7th Cir. 2005) (per curiam); Jones v.
Braxton, 392 F.3d 683, 688-89 (4th Cir. 2004).
ANALYSIS
I.
Background
A.
Proceedings in Hawaii State Courts
On April 24, 2000, a jury returned a verdict in Hawaii State
Court, finding Petitioner Calvin D. Elizares guilty on a number
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of counts including Attempted Murder in the First Degree,
Kidnapping, and Terroristic Threatenning in the First Degree.
State v. Elizares, 54 P.3d 946 (Haw. Ct. App. 2002).
On June 28, 2000, Petitioner was sentenced to life
imprisonment without parole as to the conviction for Attempted
Murder and received sentences from 5 years to 20 years
imprisonment for the remaining convictions.
(State Court
Judgment, attached as Ex. W to Resp. Answer, ECF No. 15-26, Civ.
No. 06-00465 HG-BMK).
On September 13, 2002, the Hawaii Intermediate Court of
Appeals affirmed Petitioner’s convictions and the Hawaii Supreme
Court subsequently dismissed his application for writ of
certiorari.
State v. Elizares, 54 P.3d 946 (Haw. App. 2002).
On October 19, 2004, the Hawaii Circuit Court denied
Petitioner’s Rule 40 Petition seeking post-conviction relief,
which was affirmed on appeal.
(Amended Findings and
Recommendation at pp. 7-10, ECF No. 26, Civ. No. 06-00465 HGBMK).
B.
Petitioner’s Section 2254 Filed in Federal District
Court
Following the proceedings in Hawaii State Court, on August
28, 2006, Petitioner filed a Petition for Habeas Corpus Pursuant
to 28 U.S.C. § 2254 with this Court in Civ. No. 06-00465 HG-BMK.
(ECF No. 1).
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On July 12, 2007, the District Court issued an Order
Adopting the Magistrate Judge’s Amended Findings and
Recommendation, as Supplemented and Modified, to Deny the
Petition for Writ of Habeas Corpus.
(ECF No. 33, Civ. No. 06-
00465 HG-BMK).
The District Court found that the Hawaii State Court did not
err in denying Petitioner’s motion for a mistrial or new trial.
(Id. at pp. 5-6).
The District Court held that the remaining grounds in
Petitioner’s Section 2254 Petition were both exhausted and
procedurally barred.
The District Court found that these grounds
were procedurally barred from review in federal court because
Petitioner did not establish cause to excuse his default in State
Court.
(Id. at pp. 7-9).
The District Court held that Petitioner’s ineffective
assistance of counsel claims were without merit.
(Id. at pp. 10-
11).
C.
Petitioner’s Proceedings Before the Ninth Circuit Court
of Appeals
Following proceedings in District Court, Petitioner sought
review of the denial of his Section 2254 habeas corpus petition
with the Ninth Circuit Court of Appeals.
On March 24, 2009, the Ninth Circuit Court of Appeals issued
an Order affirming the District Court’s denial of Petitioner
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Elizares’ Section 2254 Habeas Petition.
06-00465 HG-BMK).
(ECF No. 41, Civ. No.
The Ninth Circuit Court of Appeals denied
Petitioner’s request for an evidentiary hearing.
(Id. at p. 2).
On July 17, 2009, the Ninth Circuit Court of Appeals issued
an Order denying Petitioner’s request for a panel rehearing.
(ECF No. 43, Civ. No. 06-00465 HG-BMK).
On November 2, 2009, the United States Supreme Court denied
the petition for a writ of certiorari.
(ECF No. 46, Civ. No. 06-
00465 HG-BMK).
More than six years later, on January 20, 2016, and February
12, 2016, the Ninth Circuit Court of Appeals dismissed additional
appeals filed by Petitioner as duplicative.
(ECF Nos. 49, 55,
Civ. No. 06-00465 HG-BMK).
On July 1, 2016, the Ninth Circuit Court of Appeals denied
Petitioner’s motion for reconsideration of its denial of his
duplicative appeals.
(ECF No. 63, in Civ. No. 06-00465 HG-BMK).
In its July 1, 2016 order, the Ninth Circuit Court of Appeals
stated, as follows:
To the extent appellant seeks relief under Federal Rule
of Civil Procedure 60, such relief must be brought in
the district court.
(Id.)
D.
Petitioner’s Federal Rule of Civil Procedure 60 Motion
Before the District Court
Following the Ninth Circuit Court of Appeals’ July 1, 2016
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order, Petitioner filed a Motion in District Court on July 15,
2016.
(Petitioner’s FEDERAL RULES OF CIVIL PROCEDURE RULE 60(b):
MOTION FOR RELIEF FROM A FINAL JUDGMENT, ORDER, OR PROCEEDING,
filed in Civ. No. 16-00580 HG-RLP, ECF No. 1).
On October 28, 2016, this Court issued an ORDER DENYING, IN
PART, AND DISMISSING, IN PART, PETITIONER CALVIN D. ELIZARES’
FEDERAL RULES OF CIVIL PROCEDURE RULE 60(b) MOTION FOR RELIEF
FROM A FINAL JUDGMENT, ORDER OR PROCEEDING.
(ECF No. 5).
Petitioner Calvin D. Elizares now seeks a certificate of
appealability to permit him to file an appeal of the District
Court’s October 28, 2016 order.
Petitioner seeks review of the
District Court’s Order Denying his Rule 60(b) Motion and
Dismissing his Motion to the extent that it is an unauthorized
second or successive habeas petition.
II.
A Certificate Of Appealability Arising From The Denial Of
Petitioner’s Rule 60(b) Motion Is Not Warranted
In United States v. Winkles, 795 F.3d 1134, 1143 (9th Cir.
2015), the Ninth Circuit Court of Appeals set forth the standard
governing the issuance of a certificate of appealability arising
from the denial of a Rule 60(b) motion.
The appeals court held
that a certificate of appealability may be issued if the movant
shows that:
(1)
jurists of reason would find it debatable whether the
district court abused its discretion in denying the
Rule 60(b) motion; and,
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(2)
jurists of reason would find it debatable whether the
underlying habeas corpus petition states a valid claim
of the denial of a constitutional right.
Winkles, 795 F.3d at 1143 (adopting the test set forth by
the Second Circuit Court of Appeals in Kellogg v. Strack, 269
F.3d 100, 103 (2d Cir. 2001) (per curiam)).
A.
Petitioner’s Motion Filed Pursuant to Rule 60(b)(4) Was
Without Merit
Petitioner’s July 15, 2016 Motion sought to void the
District Court’s Judgment entered on July 12, 2007 pursuant to
Fed. R. Civ. P. 60(b)(4).
A Motion to set aside a judgment as void under Fed. R. Civ.
P. 60(b)(4) may be brought at any time.
Million (Far East) Ltd.
v. Lincoln Provisions Inc. USA, 581 Fed. Appx. 679, 682 (9th Cir.
2014) (citing Meadows v. Dominican Republic, 817 F.2d 517, 521
(9th Cir. 1987)).
Petitioner’s Rule 60(b)(4) Motion argued that the District
Court’s order denying his Section 2254 Petition was void on two
bases.
First, Petitioner argued that the District Court lacked
subject matter jurisdiction over his Section 2254 Petition
because it was a “mixed” petition.
Second, Petitioner argued that the District Court’s judgment
was void because he was deprived of due process of law.
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1.
The District Court Had Subject Matter Jurisdiction
Over Petitioner’s August 28, 2006 Section 2254
Petition
The District Court rejected Petitioner’s argument that his
petition was “mixed.”
The District Court had jurisdiction over
Petitioner’s Section 2254 Petition.
All of Petitioner’s Section
2254 claims were exhausted or procedurally barred.
A certificate of appealability on this issue is not
warranted.
Reasonable jurists would agree that the District
Court had jurisdiction to consider the Section 2254 Petition that
contained only exhausted claims.
2.
Petitioner Was Afforded Due Process in the
Consideration of His August 28, 2006 Section 2254
Petition
A certificate of appealability is not warranted as to
Petitioner’s due process argument.
Reasonable jurists would
agree that the record demonstrates that Petitioner was afforded
due process in the handling of his August 28, 2006 Section 2254
Petition.
He received actual notice of the habeas corpus
proceeding and was afforded the opportunity to present his
objections.
Petitioner actively participated in presenting his
case before the Magistrate Judge and the District Court.
No reasonable jurists would find debatable the underlying
merits of Petitioner’s Motion filed pursuant to Rule 60(b)(4).
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There is no reasonably debatable issue regarding the denial of
Petitioner’s Rule 60(b) Motion.
B.
Petitioner’s Rule 60(b) Motion Was Untimely
Petitioner’s July 15, 2016 Rule 60(b) Motion sought
reconsideration of the District Court’s July 12, 2007 Judgment on
other bases.
The District Court denied reconsideration of these
additional arguments because they were untimely pursuant to Fed.
R. Civ. P. 60(b)(6).
Petitioner’s request for a certificate of appealability does
not seek to appeal the District Court’s finding that his July 15,
2016 Motion was untimely pursuant to Rule 60(b)(6).
a Certificate of Appealability, ECF No. 7).
(Request for
Petitioner only
seeks to appeal the District Court’s denial of his July 15, 2016
Motion pursuant to Rule 60(b)(4).
Even if Petitioner sought review of the District Court’s
untimeliness finding, a certificate of appealability is not
warranted.
Petitioner’s July 15, 2016 Motion was filed more than
nine years after the federal District Court entered Judgment on
July 12, 2007.
(Civ. No. 06-00465 HG-BMK, ECF No. 34).
Petitioner does not provide any explanation for the nine year
delay in filing his Motion.
Fed. R. Civ. P. 60(c)(1); Lemoge v.
United States, 587 F.3d 1188, 1196-97 (9th Cir. 2009).
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III. A Certificate of Appealability Arising From The Dismissal of
Petitioner’s Second Or Successive Habeas Petition Is Not
Warranted
Petitioner’s July 15, 2016 Rule 60(b) Motion attempted to
present new habeas claims regarding ineffective assistance of
counsel pursuant to Martinez v. Ryan.
Petitioner’s Motion also
attempted to restate his previous Section 2254 claims that were
denied by the District Court in the July 12, 2007 Order and
affirmed by the Ninth Circuit Court of Appeals.
These portions
of Petitioner’s Motion were an attempt to file a second or
successive habeas petition without seeking approval from the
Ninth Circuit Court of Appeals.
A certificate of appealability arising from the denial of
Petitioner’s unauthorized second or successive Section 2254
petition may be issued if reasonable jurists would find it
debatable whether the district court was correct in its
procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 483 (2000);
Jones, 392 F.3d at 689.
A self-styled “Rule 60(b)” Motion that includes new claims
or merely attacks the federal court’s previous resolution of a
claim on the merits is in substance a successive habeas petition.
Gonzales, 545 U.S. at 532; Jones v. Ryan, 733 F.3d 825, 833 (9th
Cir. 2013); United States v. Washington, 653 F.3d 1057, 1063 (9th
Cir. 2011).
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It is beyond dispute that an applicant must move in the
appropriate court of appeals before a district court may
entertain a second or successive Section 2254 Petition.
28
U.S.C. § 2244(b)(3).
Petitioner has not made a substantial showing that the
District Court erred in its procedural ruling.
at 483.
Slack, 529 U.S.
Reasonable jurists would agree that Petitioner’s self-
styled “Rule 60(b) Motion” contained both new habeas arguments
and repeated previously denied habeas claims, in an attempt to
file an unauthorized second or successive habeas petition.
Petitioner’s Application for a Certificate of Appealability
is DENIED.
None of the arguments in Petitioner’s Motion deserve
encouragement to proceed further.
880, 893 n.4 (1983).
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Barefoot v. Estelle, 463 U.S.
CONCLUSION
Petitioner Calvin D. Elizares’ Application for a Certificate
of Appealability (ECF No. 7) is DENIED.
IT IS SO ORDERED.
DATED: December 15, 2016, Honolulu, Hawaii.
___________________________________
Helen Gillmor
United States District Judge
Calvin D. Elizares v. Joseph Taylor; Civil No. 16-00580 HG-RLP;
ORDER DENYING PETITIONER CALVIN D. ELIZARES’ APPLICATION FOR A
CERTIFICATE OF APPEALABILITY (ECF No. 7)
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