JOSE L. ECHAVARRIA V. E.K. MCDANIEL, ET AL.

Filing 235

ORDER re ECF No. 234 USCA Order : With regard to the order of February 22, 2017 (ECF No. 231 ), the petitioner is denied a certificate of appealability. Signed by Judge Miranda M. Du on 4/3/2017. ( E-mail notice (NEF) sent to the US Court of Appeals, Ninth Circuit re USCA Case 17-15560. )(Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5
6
UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9
10
11

JOSE L. ECHAVARRIA ,

Case No. 3:98-cv-00202-MMD-VPC
Petitioner,

ORDER

v.

12
13

TIMOTHY FILSON, et al.,
Respondents.

14
15
16

In this capital habeas corpus action, on January 16, 2015, this Court entered

17

judgment in favor of the petitioner, Jose L. Echavarria (ECF No. 211), and the case is

18

currently on appeal in the Ninth Circuit Court of Appeals. On January 10, 2017, Echavarria

19

filed in this Court a motion for leave to supplement his petition (ECF No. 221), seeking to

20

add to his habeas petition a claim based on Hurst v. Florida, 136 S.Ct. 616 (2016). This

21

Court denied that motion on February 22, 2017 (ECF No. 231). Echavarria appealed from

22

that ruling (ECF No. 232).

23

On March 29, 2017, the Ninth Circuit Court of Appeals remanded the case for the

24

limited purpose of this Court granting or denying Echavarria a certificate of appealability

25

regarding its February 22, 2017, ruling. (See Order filed March 29, 2017 (ECF No. 234).)

26

The standard for the issuance of a certificate of appealability requires a “substantial

27

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). The Supreme Court

28

has interpreted 28 U.S.C. § 2253(c) as follows:

1
2
3
4
5
6
7

Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is straightforward: The
petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong. The
issue becomes somewhat more complicated where, as here, the district
court dismisses the petition based on procedural grounds. We hold as
follows: When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional claim, a
COA should issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.

8

Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also James v. Giles, 221 F.3d 1074,

9

1077-79 (9th Cir. 2000).

10

Applying the standard articulated in Slack, the Court finds that a certificate of

11

appealability is unwarranted with respect to the ruling of this Court on February 22, 2017.

12

Reasonable jurists would not find the Court's ruling debatable.

13
14

It is therefore ordered that, with regard to the order of February 22, 2017 (ECF No.
231), the petitioner is denied a certificate of appealability.

15
16

DATED THIS 3rd day of April 2017.

17
18

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

19
20
21
22
23
24
25
26
27
28
2