Dunsmore v. Gore

• Court: District Court, S.D. California
• Decided: January 4, 2021
• Docket: 3:20-cv-02120
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DARRYL DUNSMORE, Case No.: 20cv2120 CAB (NLS)

12 Petitioner, ORDER DENYING CERTIFICATE 13 v. OF APPEALABILITY 14 GORE et al., 15 Respondents. 16 17 On November 13, 2020, this Court entered judgment dismissing the petition for a 18 writ of habeas corpus brought by Petitioner pursuant to 28 U.S.C. § 2254. [Doc. No. 4.] 19 On November 25, 2020, Petitioner filed a Notice of Appeal to the Ninth Circuit [Doc. No. 20 5], and a request for a certificate of appealability has been made. [Doc. No. 7.] A certificate 21 of appealability is authorized “if the applicant has made a substantial showing of the denial 22 of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by 23 demonstrating that jurists of reason could disagree with the district court’s resolution of his 24 constitutional claims or that jurists could conclude the issues presented are adequate to 25 deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 26 (2003); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). 27 Having reviewed the petition and notice of appeal, the Court finds Petitioner has 28 failed to demonstrate that reasonable jurists would find this Court’s dismissal of his petition 1 ||debatable. In his petition, Petitioner does not identify the case number associated with the 2 || writ review he alleges is being impeded. To the extent that Petitioner’s claims relate to his 3 || other pending case before this Court, Case No. 20-cv-1773-CAB-AGS, the Court informed 4 ||Petitioner that he must submit any such filings in that pending proceeding and not the 5 ||instant action. To the extent that his claims relate to his ongoing state criminal resentencing 6 || proceedings, the Court held that such claims would be subject to dismissal pursuant to the 7 || Younger abstention doctrine. Younger v. Harris, 401 U.S. 37, 45-46 (1971). Finally, to 8 ||the extent that Petitioner seeks to challenge the conditions of his confinement, the Court 9 ||noted that such a challenge must be brought (if at all) in a civil rights complaint filed 10 |}pursuant to 42 U.S.C. § 1983. Therefore, the Court finds that Petitioner has not 11 |/demonstrated that reasonable jurists would disagree with this Court’s resolution of his 12 claims and denies Petitioner’s request for a certificate of appealability. 13 IT IS SO ORDERED. 14 || Dated: January 4, 2021 15 16 WV Hon. Cathy Ann Bencivengo United States District Judge 18 19 20 21 22 23 24 25 26 27 28