(HC) Gray v. Brewer ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SAMUEL GRAY, Case No. 2:22-cv-01659-JDP (HC) 12 Petitioner, 13 v. ORDER 14 DAVID BREWER, 15 Respondent. 16 17 On April 7, 2023, the court granted respondent’s motion to dismiss and dismissed this 18 case.1 ECF Nos. 12 & 13. Petitioner appealed and the Ninth Circuit remanded for the limited 19 purpose of granting or denying a certificate of appealability. The court declines to issue a 20 certificate. 21 Under 28 U.S.C. § 2253(c), a federal prisoner must seek and obtain a certificate of 22 appealability to appeal the district court’s denial of relief under 28 U.S.C. § 2255. 28 U.S.C. 23 § 2253(c)(1). A certificate is also required where, as here, a motion under § 2255 is disguised as 24 a petition under § 2241. See Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001). A 25 “certificate of appealability may issue . . . only if the applicant has made a substantial showing of 26 the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Petitioner has not made such a 27 28 1 The parties consented to my jurisdiction. ECF No. 7. 1 | showing. As explained in my order granting respondent’s motion to dismiss, the claims at issue 2 | were previously adjudicated by the Northern District of Georgia. ECF No. 12 at 2. Petitioner 3 | argues that he should benefit from the actual innocence “escape hatch,” but that applies only 4 | where a petitioner is factually innocent and not, as here, where petitioner mounts an argument 5 | based on legal insufficiency. 6 Accordingly, the court DECLINES to issue a certificate of appealability. 7 g IT IS SO ORDERED. Dated: _ June 12, 2023 q——— 10 JEREMY D. PETERSON i UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28