(HC) Uhuru v. People of the State of California ( 2020 )

1 `` 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KOHEN DIALLO UHURU, Case No.: 20cv746-CAB-RBM 12 Petitioner, ORDER DENYING CERTIFICATE 13 v. OF APPEALABILITY [Doc. No. 15] 14 PEOPLE OF THE STATE OF CALIFORNIA, 15 Respondent. 16 17 Petitioner, a prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus 18 pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District 19 of California on April 3, 2020. [Doc. No. 1.] The case was transferred to this Court on 20 April 20, 2020. [Doc. No. 4.] On April 28, 2020, the Court dismissed the action without 21 prejudice and with leave to amend because Petitioner had failed to either pay the $5.00 22 filing fee or file a motion to proceed in forma pauperis, failed to name the proper 23 respondent, and failed to allege exhaustion of his state judicial remedies. [Doc. No. 6.] 24 Petitioner was given until July 3, 2020, to either pay the $5.00 filing fee or move to 25 proceed in forma pauperis and file a First Amended Petition that cured the pleading 26 deficiencies outlined in the Court’s April 28, 2020 Order. Id. 27 28 1 On June 19, 2020, Petitioner filed a First Amended Petition (“FAP”) and a motion 2 to proceed in forma pauperis. [Doc. Nos. 7-8.] The Court granted Petitioner’s motion to 3 proceed in forma pauperis on August 13, 2020 and dismissed the case without prejudice 4 and with leave to amend because Petitioner was seeking to challenge the conditions of his 5 confinement and not the fact or length of his incarceration. [Doc. No. 9.] Petitioner was 6 told that if he wished to challenge his state court conviction, he must file a Second 7 Amended Petition no later than October 18, 2020, and if he wished to challenge the 8 conditions of his confinement, he must file a civil rights complaint pursuant to 42 U.S.C. 9 § 1983 which would be given a new case number. Id. On October 9, 2020, Petitioner filed 10 a civil rights complaint pursuant to 42 U.S.C. § 1983 but put case no. 20cv0746 CAB 11 (RBM) on the document. [Doc. No. 10.] The document was then filed in error in this 12 case. Accordingly, on October 19, 2020, the Court directed the Clerk of Court to file 13 Petitioner’s complaint [Doc. No. 10] as a new civil rights case pursuant to 42 U.S.C. § 14 1983 and to close this case. [Doc. No. 11.]1 15 On December 14, 2020, Petitioner filed a notice of appeal. [Doc. No. 13.] On 16 December 17, 2020, the Ninth Circuit issued an order remanding the matter to the District 17 Court for the limited purpose of granting or denying a certificate of appealability. [Doc. 18 No. 15.] 19 A petitioner complaining of detention arising from state court proceedings must 20 obtain a certificate of appealability to file an appeal of the final order in a federal habeas 21 proceeding. 28 U.S.C. § 2253(c)(1)(A) (2007). The district court may issue a certificate 22 of appealability if the petitioner “has made a substantial showing of the denial of a 23 constitutional right.” Id. § 2253(c)(2). To make a “substantial showing,” the petitioner 24 must “demonstrat[e] that ‘reasonable jurists would find the district court's assessment of 25 the constitutional claims debatable[.]’ ” Beaty v. Stewart, 303 F.3d 975, 984 (9th 26 27 1 Petitioner’s civil rights complaint [Doc. No. 10] was then filed as a new case in this court, case no. 28 1 || Cir.2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here, Petitioner has 2 made a “substantial showing” as to any of the claims raised by his Petition, as 3 || Petitioner confirmed that he is challenging the conditions of his confinement, and he has 4 ||submitted a civil rights complaint which has been filed under a new case number. 5 || Therefore, the application for a certificate of appealability is DENIED. 6 IT IS SO ORDERED. 7 Dated: December 17, 2020 € Z 8 Hon. Cathy Ann Bencivengo ? United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28