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)

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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

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