Opinion
No. 2:20-cv-00667-KJM-GGH
07-21-2020
JERRY DANIEL PROFFITT, Plaintiff, v. JOE LIZARRAGA, Defendants.
ORDER
On June 16, 2020, this court adopted the magistrate judge's Findings and Recommendations and dismissed petitioner Jerry Proffitt's petition for habeas corpus, ECF No. 1. ECF No. 20. Petitioner then appealed the order to the Ninth Circuit, ECF No. 24, and the Ninth Circuit remanded the case to this court for the limited purpose of determining whether or not a Certificate of Appealability should be issued. See Proffitt v. Lizarraga, No. 20-1270, ECF No. 3 (July 15, 2020, 9th Cir.).
Under Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the court has considered whether to issue a certificate of appealability. Before petitioner can appeal this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Where the petition is denied on the merits, a certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on procedural grounds, a certificate of appealability "should issue if the prisoner can show: (1) 'that jurists of reason would find it debatable whether the district court was correct in its procedural ruling'; and (2) 'that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.'" Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473 (2000)). For the same reasons set forth in the magistrate judge's Findings and Recommendations, which this court adopted, the court finds that issuance of a certificate of appealability is not warranted in this case. This finding does not prevent petitioner from requesting authorization from the Ninth Circuit to file a successive petition. See Order, ECF No. 20, at 2 (dismissing petition "as a second or successive habeas corpus application without prejudice to its refiling with a copy of an order from the Ninth Circuit Court of Appeals authorizing petitioner to file a successive petition").
IT IS SO ORDERED. DATED: July 21, 2020.
/s/_________
CHIEF UNITED STATES DISTRICT JUDGE