Carroll v. Diaz ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TREMAYNE CARROLL, Case No.: 20-CV-1651 JLS (MDD 12 Petitioner, ORDER DENYING 13 v. CERTIFICATE OF APPEALABILITY 14 RALPH DIAZ; COVELLO; et al., 15 Respondents. 16 17 Petitioner Tremayne Carroll filed his Petition for Writ of Habeas Corpus on August 18 24, 2020. See ECF No. 1. On August 25, 2020, the Court dismissed with leave to amend 19 due to Petitioner’s failure to (1) pay the filing fee or move to proceed in forma pauperis 20 (“IFP”), (2) submit his petition on a court-approved form, and (3) set forth a cognizable 21 federal habeas claim for which venue lies in this District. See generally ECF No. 2. On 22 September 3, 2020, Petitioner filed his motion for leave to proceed IFP, see ECF No. 3, 23 and on September 8, 2020, Petitioner filed his First Amended Petition for Writ of Habeas 24 Corpus Under 28 U.S.C. § 2254 (“First Amended Petition”). See ECF No. 5. On 25 September 14, the Court dismissed the First Amended Petition without further leave to 26 amend for again failing to present a cognizable federal habeas claim for which venue lies 27 in this District. See generally ECF No. 6. That same day, the Clerk entered judgment in 28 this action. See ECF No. 7. On September 28, 2020, Petitioner Tremayne Carroll filed an 1 objection to the dismissal order that the Court construed as a motion for reconsideration, 2 see ECF No. 9, which this Court denied on November 16, 2020, see ECF No. 10. On 3 December 7, 2020, Petitioner filed a Notice of Appeal. See ECF No. 11. On December 4 18, 2020, the United States Court of Appeals for the Ninth Circuit issued an order 5 remanding the case to this Court “for the limited purpose of granting or denying a 6 certificate of appealability” (“COA”). ECF No. 13 at 1 (citations omitted). 7 A state prisoner seeking to appeal a district court’s denial of a habeas petition must 8 obtain a COA. 28 U.S.C. § 2253(c). “Determining whether a COA should issue where the 9 petition was dismissed on procedural grounds has two components, one directed at the 10 underlying constitutional claims and one directed at the district court’s procedural 11 holding.” Slack v. McDaniel, 529 U.S. 473, 484–85 (2000). “When the district court 12 denies a habeas petition on procedural grounds without reaching the prisoner’s underlying 13 constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of 14 reason would find it debatable whether the petition states a valid claim of the denial of a 15 constitutional right and that jurists of reason would find it debatable whether the district 16 court was correct in its procedural ruling.” Id. at 484. “Where a plain procedural bar is 17 present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 18 could not conclude either that the district court erred in dismissing the petition or that the 19 petitioner should be allowed to proceed further. In such a circumstance, no appeal would 20 be warranted.” Id. “Because both of these components are necessary to obtain a certificate 21 of appealability, the U.S. Supreme Court has encouraged district courts to address the 22 procedural prong first.” Alatorre v. Figaroa, No. 13-CV-1622 JLS MDD, 2014 WL 23 3908618, at *1 (S.D. Cal. Aug. 11, 2014) (citing Slack, 529 U.S. at 485; Petrocelli v. 24 Angelone, 248 F.3d 877, 884 & n.6 (9th Cir. 2001)). 25 Here, the Court concludes that no jurist of reason would find it debatable whether 26 the Court was correct in its procedural ruling that Petitioner failed to present a cognizable 27 / / / 28 / / / 1 || federal habeas claim for which venue lies in this District; consequently, the Court DENIES 2 ||a certificate of appealability. 3 IT IS SO ORDERED. 4 ||Dated: January 26, 2021 jae L. Lo memeaite- 5 on. Janis L. Sammartino United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28