Dunsmore v. Eldridge

• Court: District Court, S.D. California
• Decided: February 10, 2021
• Docket: 3:20-cv-01518
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 DARRYL DUNSMORE, Case No. 20-cv-01518-BAS-KSC 11 Petitioner, ORDER DECLINING TO ISSUE 12 CERTIFICATE OF APPEALABILITY v. 13 LAURA ELDRIDGE, et al., 14 Respondents. 15 16 This matter is before the Court on limited remand from the Ninth Circuit to grant 17 or deny a certificate of appealability (“COA”) as to Petitioner Darryl Dunsmore’s Notice 18 of Appeal of this Court’s Order dismissing his habeas petition. (ECF No. 11.) For the 19 foregoing reasons, the Court DECLINES to issue a COA. 20 I. BACKGROUND 21 Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas 22 Corpus under 28 U.S.C. § 2254. On November 2, 2020, the Court granted Petitioner’s 23 motion to proceed in forma pauperis but dismissed the Petition for two reasons. (ECF No. 24 4.) First, the Court found that the Petitioner included successive claims related to 25 Petitioner’s original 2010 conviction in San Diego Superior Court, for which Petitioner 26 had filed a federal habeas petition in 2013. (Id. at 2.) The court denied this petition on 27 the merits, the Ninth Circuit declined to issue a certificate of appealability on appeal, and 28 Petitioner did not show that he had obtained authorization for a successive petition. (Id.) 1 Second, the Court concluded it is barred from considering Petitioner’s claims under 2 the abstention doctrine announced in Younger v. Harris, 401 U.S. 37 (1971). (Id. at 3.) 3 The Court reasoned this doctrine bars consideration of Petitioner’s claims because his 4 criminal case is still ongoing in state court, the state criminal proceedings involve 5 important state interests, and Petitioner failed to demonstrate he had not been afforded an 6 adequate opportunity to raise his claims in the state proceeding. (Id. at 3–4.) Further, 7 Petitioner had not demonstrated extraordinary circumstances that would relieve the Court 8 of its obligation to abstain from ongoing state criminal proceedings. (Id. at 4.) Thus, the 9 Court dismissed the Petition without prejudice. (Id.) 10 On November 16, 2020, Petitioner appealed the Court’s dismissal of his Petition. 11 (ECF No. 7.) On November 30, 2020, the Ninth Circuit issued an order noting that this 12 Court had not issued or declined to issue a COA and remanding this case for the limited 13 purpose of doing so. (ECF No. 11.) 14 II. DISCUSSION 15 A petitioner may not appeal “the final order in a habeas corpus proceeding in which 16 the detention complained of arises out of process issued by a State court” unless “a circuit 17 justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c). “A certificate 18 of appealability may issue . . . only if the applicant has made a substantial showing of the 19 denial of a constitutional right.” Id. In Slack v. McDaniel, 529 U.S. 473, 484 (2000), the 20 Supreme Court articulated a two-part standard governing the issuance of a certificate of 21 appealability when a district court denies a habeas petition on procedural grounds. The 22 Court stated: 23 When the district court denies a habeas petition on procedural grounds without 24 reaching the prisoner’s underlying constitutional claim, a [COA] should issue when the prisoner shows, at least, [1] that jurists of reason would find it 25 debatable whether the petition states a valid claim of the denial of a 26 constitutional right and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. 27 28 Id. 1 Here, the Court dismissed the Petition because it included successive claims and 2 ||because the Court is barred from considering Petitioner’s claims based on Younger 3 || abstention. Given that the Court did not reach the merits of Petitioner’s claims, the Court’s 4 || decision constitutes a dismissal on procedural grounds. See Slack, 529 U.S. at 484; accord 5 || Strickland v. Wilson, 399 F. App’x 391, 395 (10th Cir. 2010) (noting dismissal based on 6 || Younger abstention was a dismissal on procedural grounds for certificate of appealability 7 purposes); Small v. Milyard, 488 F. App’x 288, 291 (10th Cir. 2012) (characterizing a 8 || finding of unauthorized successive claims as a “procedural conclusion’). 9 In applying the two-part standard mentioned above, the Court finds issuing a 10 ||certificate of appealability from its order of dismissal is not appropriate. Reasonable 11 jurists would not find debatable the Court’s conclusions that (1) the petition does not state 12 ||a valid claim of the denial of a constitutional right and (2) this Court’s procedural rulings 13 ||regarding Younger abstention and successive claims were correct. See Slack, 529 U.S. at 14 ||484. Thus, the Court declines to issue a COA from its order dismissing the Petition 15 || without prejudice. See 28 U.S.C. § 2253(c).! 16 CONCLUSION 17 In sum, in response to the Ninth Circuit’s order (ECF No. 11), the Court 18 || DECLINES to issue a certificate of appealability from its order dismissing the Petition 19 || without prejudice. 20 IT IS SO ORDERED. 21 _ 22 DATED: February 10, 2021 Cyl Liman: Hou. Cynthia Ba nt 23 United States District Judge 24 25 26 || ' Petitioner also appealed the Court’s Notice and Order of Document Discrepancies rejecting his Motion 27 || for a New Trial. (ECF No. 10.) It is not clear to the Court that this order is appealable. See United States y. Durrani, 320 F. App’x 585 (9th Cir. 2009). However, assuming an appeal is possible, the Court’s 28 . . : . . analysis applies with equal force to this second notice of appeal.