Rose v. State of California ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES E. ROSE, JR, Case No.: 3:21-cv-0267-CAB-BGS aka “Jason E. Roman, III”, 12 ORDER DENYING CERTIFICATE Petitioner, 13 OF APPEALABILITY v. 14 STATE OF CALIFORNIA, 15 Respondent. 16 17 18 On February 8, 2021, Petitioner, proceeding pro se, submitted a Petition for Writ of 19 Habeas Corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma 20 pauperis. ECF Nos. 1 & 2. On March 1, 2021, the Court granted Petitioner’s application 21 to proceed in forma pauperis but dismissed the Petition without prejudice because 22 Plaintiff failed to state a cognizable federal claim and failed to allege he was in custody at 23 the time of filing, as required under 28 U.S.C. § 2254. See ECF No. 3 at 3–5, citing Brock 24 v. Weston, 31 F.3d 887, 889 (9th Cir. 1994) (“Subject matter jurisdiction under the 25 federal habeas corpus statute, 28 U.S.C. § 2254(a), is limited to those persons ‘in custody 26 pursuant to the judgment of a State.’”) The Court notified Petitioner that in order to have 27 his case reopened, he needed to file a First Amended Petition which cured the pleading 28 deficiencies outlined in the Order, no later than April 30, 2021. Id. at 6. 1 On March 5, 2021, Petitioner filed a “Motion to Clarify” the ruling in which he 2 argued the Court improperly construed his Petition entitled “Manifest Injustice or Habeas 3 Corpus” as one filed under 28 U.S.C. § 2254. ECF No. 5. In its March 9, 2021 Order, the 4 Court noted it “is unaware of anything known as a ‘Petition for Manifest Injustice’” and 5 stated that “unless Petitioner complies with the requirements set out in the dismissal 6 order, this action shall remain dismissed.” ECF No. 6 at 2. 7 Petitioner failed to file a First Amended Petition by the April 30, 2021 deadline. 8 On April 14, 2021, however, Petitioner filed a document entitled “Petition for Writ of 9 Error Coram Nobis and Pursuant to Rule 60(b)(4),” which this Court construed as a 10 Request for Relief from Judgment. ECF No. 9 at 1. Petitioner filed an “Addendum” to his 11 request on May 12, 2021. ECF No. 11. On May 19, 2021, the Court denied Petitioner’s 12 motion and because amendment of the petition would be futile, the case remained 13 dismissed without further leave to amend and a certificate of appealability was denied 14 and the case was closed. ECF No. 14. On June 17, 2021, Petitioner filed another Motion 15 for Reconsideration (ECF No. 16) which this Court denied on June 28, 2021. ECF No. 16 17. 17 Petitioner filed a Notice of Appeal to the United States Court of Appeals for the 18 Ninth Circuit on July 23, 2021, challenging the dismissal of his petition. See ECF No. 19. 19 On October 22, 2021, Petitioner attempted to file a “Petition to Produce Transcript” in 20 which he sought “a copy of the records that took place with the late Honorable Judge 21 Harold B. Turrentine.” ECF No. 21-1 at 1. In the document, Petitioner contended that 22 these records “will establish Petitioner’s innocence.” Id. The Court rejected the document 23 for filing because the case was closed. ECF No. 21. Petitioner then filed another Notice 24 of Appeal to the United States Court of Appeals for the Ninth Circuit, appealing this 25 Court’s rejection of the document for filing. ECF No. 22. On December 1, 2021, the 26 Ninth Circuit remanded the case for the limited purpose of determining whether a 27 Certificate of Appealability should issue on Petitioner’s “October 26, 2021 post-judgment 28 order rejecting appellant’s ‘petition to produce transcript.’” See ECF No. 24. 1 “[A] state prisoner seeking a writ of habeas corpus has no absolute entitlement to 2 appeal a district court’s denial of his petition,” and an appeal is only allowed in certain 3 circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); see 28 U.S.C. 4 § 2253(c)(1)(A) (permitting habeas appeals from state prisoners only with a certificate of 5 appealability). Specifically, the federal rules governing habeas cases brought by state 6 prisoners require a district court issuing an order denying a habeas petition to either grant 7 or deny therein a certificate of appealability. See Rules Governing § 2254 Case, Rule 8 11(a). A judge shall grant a certificate of appealability “only if the applicant has made a 9 substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and 10 the certificate must indicate which issues satisfy this standard. 28 U.S.C. § 2253(c)(3). 11 Here, Petitioner has not made such a showing. Petitioner’s “Petition to Produce 12 Transcript” was submitted for filing well after the case was closed. In addition, the 13 transcripts he seeks, assuming they exist,1 are irrelevant to the Court’s jurisdiction under 14 28 U.S.C. § 2254. As discussed in the original March 1, 2021 dismissal order, this Court 15 lacks jurisdiction because Petitioner has failed to allege he was in state custody at the 16 time of filing, as required under 28 U.S.C. § 2254. See ECF No. 3 at 3–5, citing Brock v. 17 Weston, 31 F.3d 887, 889 (9th Cir. 1994) (“Subject matter jurisdiction under the federal 18 habeas corpus statute, 28 U.S.C. § 2254(a), is limited to those persons ‘in custody 19 pursuant to the judgment of a State.’”). Obtaining the “transcript” of a hearing that took 20 place at least 10 years ago2 would not solve the jurisdictional issue in this case because it 21 would not show that Petitioner was in actual or constructive custody at the time he filed 22 / / / 23 24 1 A search of this Court’s CM/ECF system failed to show any case, civil or criminal, involving 25 Petitioner James E. Rose (or his alias, “Jason E. Roman”) that was presided over by former United States District Judge Howard Turrentine. Indeed, the only other case involving Petitioner is a civil rights 26 action filed in Case No. 20cv0760-JLS-WVG in which Petitioner also sought to have records from a hearing purportedly conducted by Judge Turrentine produced. See Case No. 3:20-cv-0760-JLS-WVG, 27 ECF No. 1. The complaint was dismissed as frivolous on June 2, 2020. See id., ECF No. 5. 28 1 Petition on February 28, 2021. Accordingly, the Court DECLINES to issue a 2 certificate of appealability. 3 IT IS SO ORDERED. 4 Dated: December 2, 2021 ( é XK ° Hon. Cathy Ann Bencivengo 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28