(HC) Zack Sanchez v. Becerra ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ZACK SANCHEZ, Case No. 1:20-cv-00823-DAD-HBK 12 Petitioner, ORDER DENYING BOTH PETITIONER’S REQUEST FOR A CERTIFICATE OF 13 v. APPEALABILITY AND MOTION TO PROCEED ON APPEAL IN FORMA 14 XAVIER BECERRA, PAUPERIS 15 Respondent. (Doc. Nos. 14, 15) 16 17 18 Petitioner Zack Sanchez, a state prisoner proceeding without counsel, moves the court to 19 issue a certificate of appealability and grant him leave to proceed on appeal in forma pauperis. 20 (Doc. Nos. 14, 15.) 21 Petitioner filed his petition for writ of habeas corpus on June 17, 2020, and the previously 22 assigned magistrate judge subsequently issued an order to show cause as to why the petition 23 should not be dismissed due to petitioner’s failure to exhaust one of his claims by presenting it 24 first to the highest state court. (Doc. Nos. 1, 2.) The order to show cause granted petitioner thirty 25 days to seek a stay of his petition for purposes of exhausting his unexhausted claim or, in the 26 alternative, to dismiss his unexhausted claim and proceed in this habeas action on his exhausted 27 claims only. (Doc. No. 2.) However, petitioner did not timely respond to the order to show cause 28 and on August 11, 2020, the previous magistrate judge issued findings and recommendations 1 recommending that the petition be dismissed due to petitioner’s failure to exhaust one of his 2 claims. (Doc. No. 4.) 3 On August 31, 2020, petitioner filed a first amended petition which included the same 4 claims asserted in the original petition, including the unexhausted claim. (Doc. No. 5.) Petitioner 5 never filed any objections to the findings and recommendations. On December 9, 2020, the court 6 adopted the findings and recommendations issued by the previously assigned magistrate judge, 7 dismissed the petition for writ of habeas corpus, and declined to issue a certificate of 8 appealability. (Doc. Nos. 9, 10.) On December 29, 2020, petitioner filed a notice of appeal with 9 the U.S. Court of Appeals for the Ninth Circuit. (Doc. No. 11.) 10 First, in his application for a certificate of appealability, petitioner “moves this court to 11 hear his claims that have been exhausted or to issue a [certificate of appealability] on the issues 12 that were in fact exhausted.” (Doc. No. 14 at 1.) However, unless a petition is stayed and held in 13 abeyance for the purposes of exhaustion, “[f]ederal courts must dismiss habeas petitions that 14 contain both exhausted and unexhausted claims.” Rose v. Lundy, 455 U.S. 509, 522 (1982). In 15 the order to show cause, the previous magistrate judge explained the two procedures for seeking a 16 stay of these proceedings and ordered petitioner to notify the court whether he wished to seek a 17 stay or proceed with his exhausted claims only. (Doc. No. 2 at 2–4.) Petitioner instead belatedly 18 filed a first amended petition which, despite the advisements given to petitioner, included the 19 same claims as those asserted in the original petition, including his unexhausted claim. (See Doc. 20 No. 5.) 21 Additionally, in the findings and recommendations, the previously assigned magistrate 22 judge explained that petitioner may seek a stay and abeyance of his petition in his objections to 23 the findings and recommendations. (Doc. No. 4 at 2 n.1.) However, petitioner never filed 24 objections and, as discussed in the court’s order adopting the findings and recommendations, his 25 amended petition did not cure or properly address the deficiencies noted in the order to show 26 cause, i.e., whether he seeks a stay or wishes to proceed only with his exhausted claims. (Doc. 27 No. 9 at 2.) 28 ///// 1 Therefore, for the reasons stated above, and in this court’s previous order, petitioner’s 2 motion for a certificate of appealability will be denied. (See Doc. No. 9.) If petitioner wishes to 3 seek a certificate of appealability directly from the U.S. Court of Appeals for the Ninth Circuit, he 4 should do so. See Fed. R. App. P. 22(b)(1) (“If the district judge has denied the certificate of 5 appealability, the applicant may request a circuit judge to issue it.”). 6 Second, Federal Rule of Appellate Procedure 24 governs applications to proceed in forma 7 pauperis on appeal and sets forth two requirements: (1) a party must demonstrate an inability to 8 pay; and (2) the appeal must be brought in good faith. An appeal may not be taken in forma 9 pauperis if the trial court certifies in writing that it is not taken in good faith. 28 U.S.C. § 10 1915(a)(3). Good faith on appeal is demonstrated by an objective standard of a nonfrivolous 11 issue. Coppedge v. United States, 369 U.S. 438, 445 (1962). Here, it is entirely unclear from a 12 review of petitioner’s notice of appeal what issues petitioner intends to present on appeal. See 13 Fed. R. App. P. 24(a)(1)(C). The notice of appeal only states that petitioner is appealing “the 14 judgement of the court denying the petition for writ of habeas corpus and dismissing the action 15 sought in petition.” (Doc. No. 11.) 16 Upon re-review of this matter and having previously denied petitioner a certificate of 17 appealability, the court finds that the appeal is not taken in good faith and denies petitioner’s 18 motion to proceed in forma pauperis on appeal. (Doc. No. 15.) Because the court certifies that 19 this appeal is not taken in good faith, any request to proceed in forma pauperis should be sent 20 directly to the Ninth Circuit Court of Appeals. See Fed. R. App. P. 24(a)(5). 21 Accordingly, it is hereby ordered that: 22 1. Petitioner’s application for certificate of appealability (Doc. No. 14) is denied; 23 2. Petitioner’s motion to proceed in forma pauperis (Doc. No. 15) is denied; 24 3. Pursuant to 28 U.S.C. § 1915(a)(3), petitioner is not entitled to proceed in forma 25 pauperis in Appeal No. 20-17509; and 26 4. The Clerk of the Court is directed to notify the U.S. Court of Appeals for the Ninth 27 Circuit that this court certifies, pursuant to Federal Rule of Appellate Procedure 24(a)(3)(A), that 28 ///// 1 | plaintiff's appeal is not taken in good faith, and he must therefore seek further authorization from 2 the court of appeals pursuant to Rule 24(a)(5) to obtain leave to proceed in forma pauperis. 3 4 5 | ITIS ORDERED. ~ 6] Dated: _ April 2, 2021 LL 1 Yrod 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28