Opinion
C 10-0057 JSW (PR)
05-13-2013
DEAN A. SCHWARTZMILLER, Petitioner, v. KENNETH CLARK, Warden, Respondent.
ORDER DENYING
CERTIFICATE OF
APPEALABILITY
This is a habeas corpus case filed pro se by a state prisoner pursuant to 28 U.S.C. § 2254. On December 23, 2011, the petition was denied on the grounds of procedural default because the state courts held that both of his claims were forfeited when petitioner failed to make a contemporaneous objection on the grounds he relied upon in the appeal and in the instant petition. See Inthavong v. Lamarque, 420 F.3d 1055, 1058 (9th Cir. 2005) (affirming denial of petition for procedural default based on California's contemporaneous objection rule); Davis v. Woodford, 384 F.3d 628, (9th Cir. 2004) (holding objection on evidentiary ground insufficient to preserve constitutional claim, which therefore was procedurally barred on federal habeas); Paulino v. Castro, 371 F.3d 1083, 1092-93 (9th Cir. 2004) (holding petitioner barred from challenging jury instruction for failure to object at trial); Vansickel v. White, 166 F.3d 953, 957-58 (9th Cir. 1999) (holding petitioner barred from challenging denial of peremptory challenges for failure to contemporaneously object). A certificate of appealability was denied in the same order.
About a year later, Petitioner filed a motion for reconsideration, which was denied on March 22, 2013. Petitioner appealed the order denying reconsideration, and the Court of Appeals issued a limited remand order directing this Court to determine whether a certificate of appealability should be granted. No reasonable jurist would disagree that Petitioner presented no grounds for reconsidering the denial of the petition. Therefore, a certificate of appealability is DENIED.
IT IS SO ORDERED.
________________________
JEFFREY S. WHITE
United States District Judge
DEAN A. SCHWARTZMILLER, Plaintiff,
v. KENNETH CLARK et al, Defendant.
Case Number: CV10-00057 JSW
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on May 13, 2013, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Dean A. Schwartzmiller
F67490
P.O. Box 5246
Corcoran, CA 93212
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk