(HC) Proffitt v. Lazarrag ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY DANIEL PROFFITT, No. 2:20-cv-00667-KJM-GGH 12 Plaintiff, 13 v. ORDER 14 JOE LIZARRAGA, 15 Defendants. 16 17 18 On June 16, 2020, this court adopted the magistrate judge’s Findings and 19 Recommendations and dismissed petitioner Jerry Proffitt’s petition for habeas corpus, ECF No. 1. 20 ECF No. 20. Petitioner then appealed the order to the Ninth Circuit, ECF No. 24, and the Ninth 21 Circuit remanded the case to this court for the limited purpose of determining whether or not a 22 Certificate of Appealability should be issued. See Proffitt v. Lizarraga, No. 20-1270, ECF No. 3 23 (July 15, 2020, 9th Cir.). 24 Under Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the court 25 has considered whether to issue a certificate of appealability. Before petitioner can appeal this 26 decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 27 Where the petition is denied on the merits, a certificate of appealability may issue under 28 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 1 constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of 2 appealability indicating which issues satisfy the required showing or must state the reasons why 3 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 4 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 5 jurists of reason would find it debatable whether the district court was correct in its procedural 6 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 7 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 8 2000) (quoting Slack v. McDaniel, 529 U.S. 473 (2000)). For the same reasons set forth in the 9 magistrate judge’s Findings and Recommendations, which this court adopted, the court finds that 10 issuance of a certificate of appealability is not warranted in this case. This finding does not 11 prevent petitioner from requesting authorization from the Ninth Circuit to file a successive 12 petition. See Order, ECF No. 20, at 2 (dismissing petition “as a second or successive habeas 13 corpus application without prejudice to its refiling with a copy of an order from the Ninth Circuit 14 Court of Appeals authorizing petitioner to file a successive petition”). 15 IT IS SO ORDERED. 16 DATED: July 21, 2020. 17 18 19 20 21 22 23 24 25 26 27 28