Posey v. Gillespie et al

Filing 10

ORDER Denying 8 Motion for Certificate of Appealability re 7 Notice of Appeal. FURTHER ORDERED that the court further certifies to the court of appeals that the appeal is not take in good faith. E-mail notice (NEF) sent to the US Court of Appeals, Ninth Circuit. Signed by Judge James C. Mahan on 4/11/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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ANTHONY M. POSEY,
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Petitioner,

2:12-cv-00313-JCM-VCF

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vs.
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ORDER
SHERIFF DOUG GILLESPIE, et al.,
Respondents.

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This habeas matter under 28 U.S.C. § 2241, in which petitioner seeks federal pretrial

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intervention in a pending state criminal proceeding, comes before the court on petitioner’s

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application (#8) for a certificate of appealability.

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Although the court did not provide a disposition as to a certificate of appealability in its

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order of dismissal, it would appear that a certificate of appealability is a prerequisite for an

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appeal when an inmate or detainee in state custody seeks relief under § 2241. See,e.g.,

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Wilson v. Belleque, 554 F.3d 816, 824-25 (9th Cir. 2009).

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When the district court denies a habeas petition on procedural grounds without

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reaching the underlying constitutional claims, the petitioner must show, in order to obtain a

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certificate of appealability: (1) that jurists of reason would find it debatable whether the petition

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stated a valid claim of a denial of a constitutional right; and (2) that jurists of reason would find

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it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel,

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529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). While both showings

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must be made, "a court may find that it can dispose of the application in a fair and prompt

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manner if it proceeds first to resolve the issue whose answer is more apparent from the

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record and arguments." 529 U.S. at 485, 120 S.Ct. at 1604. Where a plain procedural bar

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is properly invoked, an appeal is not warranted. 529 U.S. at 484, 120 S.Ct. at 1604.

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In the present case, jurists of reason would not find it debatable whether the district

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court was correct in its dismissal of the handwritten petition without prejudice to the filing of

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a new petition in a new action instead on the required form. The court’s local rule LSR 3-1

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requires that a habeas petition must be filed on the court’s required form, in this instance an

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AO-242 form for a § 2241 petition. The court directed the clerk to provide petitioner such a

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form and dismissed the current action without prejudice. Such dismissal is not tantamount

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to a with-prejudice dismissal given that petitioner has not been convicted in the pending state

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criminal proceedings, such that the federal limitation period has not even begun to run.

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Petitioner urges in his application that his constitutional rights allegedly are being

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violated in the pending state criminal proceedings and that the state courts have not granted

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him relief. However, even assuming arguendo, that petitioner were to present a viable basis

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for federal pretrial intervention in the pending state criminal proceedings, which arguendo

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assumption is a highly dubious one,1 petitioner still must present a petition on the required

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form. Petitioner’s application ignores the purely procedural basis for the dismissal without

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prejudice to the filing of a new petition in a new action on the proper form.

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The court accordingly will deny a certificate of appealability.

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Further, the court, pursuant to 28 U.S.C. § 1915(a)(3), certifies to the court of appeals

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that the appeal is not taken in good faith. An appeal of a dismissal without prejudice to the

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filing of a new petition on the proper form in a new action – with no accompanying adverse

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limitation period consequences – is frivolous such that an appeal would be dismissed in the

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case of a non-indigent litigant.

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As the court noted in passing in a footnote in the order of dismissal, petitioner’s attempt to recast his
claims as a violation of double jeopardy would appear to be frivolous on its face. See #2, at 2 n.1. In all
events, however, petitioner – in the first instance – must present his petition on the proper form as required by
the court’s local rule.

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IT THEREFORE IS ORDERED that petitioner’s application (#8) for a certificate of
appealability is DENIED.
IT FURTHER IS ORDERED that the court further certifies to the court of appeals that
the appeal is not taken in good faith.

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The clerk shall reflect both dispositions prominently in the docket entry for this order

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and shall forward same to the court of appeals in the customary practice, which may include

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by notice of electronic filing.

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DATED:April 11, 2012.

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____________________________________
JAMES C. MAHAN
United States District Judge

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