Opinion
Case No.: 20cv2120 CAB (NLS)
01-04-2021
DARRYL DUNSMORE, Petitioner, v. GORE et al., Respondents.
ORDER DENYING CERTIFICATE OF APPEALABILITY
On November 13, 2020, this Court entered judgment dismissing the petition for a writ of habeas corpus brought by Petitioner pursuant to 28 U.S.C. § 2254. [Doc. No. 4.] On November 25, 2020, Petitioner filed a Notice of Appeal to the Ninth Circuit [Doc. No. 5], and a request for a certificate of appealability has been made. [Doc. No. 7.] A certificate of appealability is authorized "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Having reviewed the petition and notice of appeal, the Court finds Petitioner has failed to demonstrate that reasonable jurists would find this Court's dismissal of his petition debatable. In his petition, Petitioner does not identify the case number associated with the writ review he alleges is being impeded. To the extent that Petitioner's claims relate to his other pending case before this Court, Case No. 20-cv-1773-CAB-AGS, the Court informed Petitioner that he must submit any such filings in that pending proceeding and not the instant action. To the extent that his claims relate to his ongoing state criminal resentencing proceedings, the Court held that such claims would be subject to dismissal pursuant to the Younger abstention doctrine. Younger v. Harris, 401 U.S. 37, 45-46 (1971). Finally, to the extent that Petitioner seeks to challenge the conditions of his confinement, the Court noted that such a challenge must be brought (if at all) in a civil rights complaint filed pursuant to 42 U.S.C. § 1983. Therefore, the Court finds that Petitioner has not demonstrated that reasonable jurists would disagree with this Court's resolution of his claims and denies Petitioner's request for a certificate of appealability.
IT IS SO ORDERED. Dated: January 4, 2021
/s/_________
Hon. Cathy Ann Bencivengo
United States District Judge