Opinion
3:07-cv-00362-RLH-WGC
01-09-2013
FREDERIC GREEN, Petitioner, v. BILL DONAT, et al., Respondents.
ORDER
This action is a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, by a Nevada prisoner. By order filed November 24, 2009, the Court granted respondents' motion to dismiss, finding that Grounds 2, 3, 4, and 5(E) were unexhausted. (ECF No. 33). Petitioner filed a motion to stay this action and return to state court to exhaust his unexhausted claims. (ECF No. 34). Therefore, on April 1, 2010, this Court entered an order granting petitioner's motion for a stay and abeyance pending exhaustion of his unexhausted claims. (ECF No. 49).
Nearly two years later, on November 2, 2012, petitioner filed a motion for reconsideration of this Court's November 24, 2009 order, which dismissed certain clams. (ECF No. 58). Petitioner also filed a motion for the appointment of counsel. (ECF No. 54). Petitioner had also filed a motion to amend the petition and two motions to reopen the case. (ECF Nos. 55, 56, 59). By order filed November 5, 2012, this Court entered an order doing the following: (1) denying petitioner's motion for reconsideration; (2) denying petitioner's motion for counsel; (3) granting petitioner's motion to amend the petition; and (4) granting petitioner's motion to reopen the case. (ECF No. 60).
On November 26, 2012, petitioner filed a notice of appeal of this Court's order filed November 5, 2012. (ECF No. 62). This Court construes petitioner's November 26, 2012 notice of appeal as a motion for a certificate of appealability. In order to proceed with his appeal, petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make "a substantial showing of the denial of a constitutional right" to warrant a certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). "The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. (quoting Slack, 529 U.S. at 484). In order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are debatable among jurists of reason; that a court could resolve the issues differently; or that the questions are adequate to deserve encouragement to proceed further. Id.
In the present case, this Court has denied petitioner's motion for reconsideration of the Court's ruling, two years' prior, which determined that some claims were unexhausted and some claims were noncognizable. (ECF No. 60). In the same order, this Court granted petitioner's motion to amend the petition and motion to reopen the case. (Id.). No reasonable jurist could conclude that this Court's order of November 5, 2012 was in error. Petitioner is not entitled to a certificate of appealability.
IT IS THEREFORE ORDERED that petitioner's motion for a certificate of appealability (ECF No. 62) is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall send a copy of this order to the United States Court of Appeals for the Ninth Circuit.
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UNITED STATES DISTRICT JUDGE