United States District Court, E.D. California
August 27, 2014
GERALD L. TUCKER, Petitioner,
P. D. BRAZELTON, Respondent.
ORDER DENYING PETITIONER'S MOTION FOR RECONSIDERATION (DOC. 21) AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
ANTHONY W. ISHII, Senior District Judge.
Petitioner is a state prisoner who proceeded pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On or about July 31, 2014, the Ninth Circuit Court of Appeals transmitted to this Court a motion for reconsideration from Petitioner along with a copy of this Court's docket in this proceeding. The motion was filed on July 31, 2014.
I. Motion for Reconsideration
On July 1, 2014, the Court denied Petitioner's previously filed motion for reconsideration of this Court's earlier dismissal of his petition for writ of habeas corpus as a successive petition and the corresponding judgment entered on January 3, 2014. In the order of July 1, 2014, the Court set forth the pertinent legal standards concerning a motion for reconsideration, which likewise govern the present application.
In the motion for reconsideration presently pending before the Court, Petitioner challenges final orders of the district court dated August 2, 2012. No order issued from this Court in this case on that date.
In the motion, which is captioned for the Ninth Circuit Court of Appeals, Petitioner seeks consent to file his petition for writ of habeas corpus. This Court cannot grant Petitioner any relief because only the Ninth Circuit Court of Appeals can grant consent to file a successive petition. 28 U.S.C. § 2244(b)(3).
Petitioner also complains of false charges, sentencing error, failure to correct a sentence, a Brady violation, perjury, and an absence of evidence to demonstrate a robbery or sexual intercourse.
If a motion for reconsideration is properly considered in this case, then Petitioner has shown no grounds for relief from the dismissal of Petitioner's successive petition under either Fed.R.Civ.P. 59(e) or Fed.R.Civ.P. 60.
II. Certificate of Appealability
Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the Court of Appeals from the final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). A district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. Rule 11(a) of the Rules Governing Section 2254 Cases.
A certificate of appealability may issue only if the applicant makes a substantial showing of the denial of a constitutional right. § 2253(c)(2). Under this standard, a petitioner must show that reasonable jurists could debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell , 537 U.S. at 336 (quoting Slack v. McDaniel , 529 U.S. 473, 484 (2000)). A certificate should issue if the Petitioner shows that jurists of reason would find it debatable whether: (1) the petition states a valid claim of the denial of a constitutional right, and (2) the district court was correct in any procedural ruling. Slack v. McDaniel , 529 U.S. 473, 483-84 (2000).
In determining this issue, a court conducts an overview of the claims in the habeas petition, generally assesses their merits, and determines whether the resolution was debatable among jurists of reason or wrong. Id . An applicant must show more than an absence of frivolity or the existence of mere good faith; however, the applicant need not show that the appeal will succeed. Miller-El v. Cockrell , 537 U.S. at 338
Here, to the extent that a certificate of appealability is required for appellate review of this order, it does not appear that reasonable jurists could debate whether the petition or motion should have been resolved in a different manner. Petitioner has not made a substantial showing of the denial of a constitutional right.
Accordingly, the Court will decline to issue a certificate of appealability.
In accordance with the foregoing analysis, it is ORDERED that:
1) Petitioner's motion for reconsideration is DENIED; and
2) The Court DECLINES to issue a certificate of appealability.
IT IS SO ORDERED.