(HC) Jones v. The People of the State of California ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALVIN BERNARD JONES, Case No. 1:18-cv-00493-JDP 12 Petitioner, ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY OF 13 v. ORDER DENYING PETITIONER’S MOTION FOR RECONSIDERATION 14 J. GASTELO, ECF No. 24 15 Respondent. 16 17 Petitioner Alvin Bernard Jones, a state prisoner without counsel, filed a writ of habeas corpus 18 under 28 U.S.C. § 2254. ECF No. 1. Both parties have consented to the jurisdiction of a magistrate 19 judge. ECF Nos. 6, 13. On June 5, 2019, the petition was denied on the merits and the case was 20 closed. ECF Nos. 20, 21. On July 12, 2019, petitioner filed objections to this court’s denial of his 21 petition and requested an evidentiary hearing. ECF No. 23. On December 24, 2019, we construed 22 petitioner’s objections as a motion for reconsideration and denied the motion on the merits. ECF No. 23 24. Petitioner appealed our order denying his motion for reconsideration to the Court of Appeals for 24 the Ninth Circuit. ECF No. 25. The Court of Appeals remanded the case so that we could consider 25 whether to issue a certificate of appealability. ECF No. 28 at 2. For the following reasons, we deny 26 to issue a certificate of appealability. 27 Discussion 28 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 1 court’s denial of a final order; he may appeal only in limited circumstances. See 28 U.S.C. 2 § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 3 Cases requires a district court to issue or deny a certificate of appealability when entering a final 4 order adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 5 F.3d 1268, 1270 (9th Cir. 1997). An order denying a Rule 60(b) motion for reconsideration is a 6 “final, appealable order.” See United States v. Winkles, 795 F.3d 1134, 1139 (9th Cir. 2015). A 7 certificate of appealability should only issue for the denial of a Rule 60(b) motion in a habeas 8 proceeding if (1) jurists of reason would find it debatable whether the “district court abused its 9 discretion in denying the Rule 60(b) motion” and (2) jurists of reason would find it debatable 10 whether the underlying habeas petition “states a valid claim of the denial of a constitutional 11 right.” United States v. Winkles, 795 F.3d 1134, 1143 (9th Cir. 2015). The second prong of this 12 test requires the petitioner to show that “jurists of reason could disagree with the district court’s 13 resolution of his constitutional claims or that jurists could conclude the issues presented are 14 adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; see Slack v. 15 McDaniel, 529 U.S. 473, 484 (2000). The petitioner must show “something more than the 16 absence of frivolity or the existence of mere good faith.” Miller-El, 537 U.S. at 338. 17 Here, jurists of reason would not find it debatable whether we abused our discretion in 18 denying petitioner’s Rule 60(b) motion. In his motion for reconsideration, petitioner failed to 19 present any of the arguments required for a motion for reconsideration—such as mistake, fraud, 20 inadvertence, or newly-discovered evidence. See ECF No. 24 at 2. Additionally, reasonable 21 jurists would not find it debatable whether the underlying habeas petition states a valid claim of 22 the denial of a constitutional right. Petitioner’s constitutional claims were fully considered and 23 denied on the merits. See ECF No. 20. Thus, we decline to issue a certificate of appealability for 24 the denial of petitioner’s motion for reconsideration. 25 26 27 28 1 | Order 2 This court declines to issue a certificate of appealability for the denial of petitioner’s 3 | motion for reconsideration. ECF No. 24. The Clerk of the Court is directed to serve a copy of 4 | this order on the Court of Appeal for the Ninth Circuit. 5 6 IT IS SO ORDERED. ’ y 6, —N prssann — Dated: _ February 6, 2020 8 UNI STATES MAGISTRATE JUDGE 9 10 11 | No. 206. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28