Dunsmore v. Gore ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARRYL DUNSMORE, Case No.: 3:20-cv-1609-LAB-NLS 12 Petitioner, ORDER DENYING CERTIFICATE 13 v. OF APPEALABILITY 14 WILLIAM GORE, Sheriff, 15 Respondent. 16 17 On November August 17, 2020, Petitioner filed a petition for writ of habeas 18 corpus, pursuant to 28 U.S.C. §2241. (ECF No. 1.) The Court dismissed the Petition 19 without prejudice on September 23, 2020 because Petitioner had failed to satisfy the 20 filing fee requirement. (ECF No. 2.) On October 5, 2020, Petitioner filed a request to 21 proceed in forma pauperis. (ECF No. 3.) On November 2, 2020, this Court granted 22 Petitioner’s in forma pauperis application and dismissed the case without prejudice 23 because Petitioner appeared to be challenging a state court conviction in San Diego 24 Superior Court Case No. SCS197057 and district courts lack jurisdiction under 28 U.S.C. 25 § 2241 over claims which challenge a state court conviction. (ECF No. 6 at 2–3, citing 26 White v. Lambert, 370 F.3d 1002, 1004 (9th Cir. 2004), overruled on other grounds by 27 Hayward v. Marshall, 603 F.3d 546, 554 (9th Cir. 2010).) In the dismissal Order, it was 28 noted that Petitioner currently has another case pending before this Court challenging the 1 ||same state court conviction in SCS197057 under 28 U.S.C. § 2254.! (Ud. at 3 n.1; see also 2 || Dunsmore v. Gore, 20-cv-1773-CAB-AGS.) Petitioner filed a notice of appeal on 3 || November 18, 2020. (ECF No. 8.) On November 20, 2020, the Ninth Circuit remanded 4 || the case to this Court to determine whether a certificate of appealability should issue. 5 || (ECF No. 10.) 6 While Petitioner filed his petition under 28 U.S.C. $2241, because he appears to be 7 || challenging a state court conviction, he must first obtain a certificate of appealability. See 8 U.S.C. § 2253(c)(1)(A) (2006) (“Unless a circuit justice or judge issues a certificate of 9 || appealability, an appeal may not be taken to the court of appeals from the final order in a 10 habeas corpus proceeding in which the detention complained of arises out of process 11 |/issued by a State court.”). 12 A certificate of appealability is authorized “if the applicant has made a substantial 13 || showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). As discussed in 14 |/this Court’s Order dismissing the petition, 28 U.S.C. § 2241] is not the proper vehicle for 15 challenging Petitioner’s state court conviction. (See ECF No. 6 at 2, citing White, 370 16 at 1004.) Therefore, the Court finds Petitioner cannot demonstrate that reasonable 17 ||jurists would find this Court’s dismissal of his 28 U.S.C. § 2241 petition debatable. See 18 || Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack v. McDaniel, 529 U.S. 19 ||473, 484 (2000). Accordingly, the certificate of appealability is DENIED. 20 || IT ISSO ORDERED. 21 |};DATED: December 3, 2020 ( bef Af “4 Zuni) 79 Hon. Larry Alan Burns Chief United States District Judge 23 24 25 27 ||! On October 14, 2020, the Court issued an order to respond in Case No. 20-cv-1773- 2g CAB-AGS and a responsive pleading is due J anuary 14, 2021. (See Dunsmore v. Gore, 20-cv-1773-CAB-AGS, ECF No. 17, Order Granting Extension of Time.)