Keller v. Baca

Filing 51

ORDER denying Petitioner a certificate of appealability. Signed by Judge Miranda M. Du on 7/10/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BRET HENRY KELLER,

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Case No. 3:15-cv-00563-MMD-VPC
Petitioner,

ORDER

v.
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ISIDRO BACA, et al.,
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Respondents.
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On June 12, 2018, the Court denied Petitioner’s motion for stay and abeyance and

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directed Petitioner to either (1) move to dismiss his unexhausted claims or (2) move to

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dismiss the entire Petition. On July 6, 2018, Petitioner filed a notice of appeal. That same

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date, the Court of Appeals issued a notice indicating that the appeal would not proceed

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unless and until either this Court or the Court of Appeals determined that a certificate of

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appealability should issue.

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At the outset, the Court notes that this action has not been dismissed, final

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judgment has not been entered, and the Court has not certified any order for interlocutory

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appeal. If the Court of Appeals finds that it has jurisdiction to consider Petitioner’s appeal,

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however, the Court will deny Petitioner a certificate of appealability.

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In order to proceed with an appeal, Petitioner must receive a certificate of

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appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v.

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Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); see also United States v. Mikels, 236

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F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make “a substantial

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showing of the denial of a constitutional right” to warrant a certificate of appealability.

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Allen, 435 F.3d at 951, 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84

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(2000). “The petitioner must demonstrate that reasonable jurists would find the district

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court’s assessment of the constitutional claims debatable or wrong.” Allen, 435 F.3d at

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951 (quoting Slack, 529 U.S. at 484). In order to meet this threshold inquiry, the petitioner

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has the burden of demonstrating that the issues are debatable among jurists of reason;

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that a court could resolve the issues differently; or that the questions are adequate to

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deserve encouragement to proceed further. Id. When the defendant’s claim is denied on

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procedural grounds, a certificate of appealability should issue if the petitioner shows: (1)

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“that jurists of reasons would find it debatable whether the petition states a valid claim of

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the denial of a constitutional right;” and (2) “that jurists of reason would find it debatable

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whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484-85.

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The Court has considered the issues raised by Petitioner, with respect to whether

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they satisfy the standard for issuance of a certificate of appealability, and determines that

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none meet that standard. The Court therefore denies Petitioner a certificate of

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appealability.

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DATED THIS 10th day of July 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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