(HC) Gray v. Brewer

Opinion

SAMUEL GRAY, Case No. 2:22-cv-01659-JDP (HC) Petitioner, v. ORDER Respondent. On April 7, 2023, the court granted respondent’s motion to dismiss and dismissed this case.1 ECF Nos. 12 & 13. Petitioner appealed and the Ninth Circuit remanded for the limited purpose of granting or denying a certificate of appealability. The court declines to issue a certificate. Under 28 U.S.C. § 2253(c), a federal prisoner must seek and obtain a certificate of appealability to appeal the district court’s denial of relief under 28 U.S.C. § 2255. 28 U.S.C. § 2253(c)(1). A certificate is also required where, as here, a motion under § 2255 is disguised as a petition under § 2241. See Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001). A “certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Petitioner has not made such a

1 The parties consented to my jurisdiction. ECF No. 7. showing. As explained in my order granting respondent’s motion to dismiss, the claims at issue were previously adjudicated by the Northern District of Georgia. ECF No. 12 at 2. Petitioner argues that he should benefit from the actual innocence “escape hatch,” but that applies only where a petitioner is factually innocent and not, as here, where petitioner mounts an argument based on legal insufficiency. Accordingly, the court DECLINES to issue a certificate of appealability. g IT IS SO ORDERED.

Dated: _ June 12, 2023 q——— JEREMY D. PETERSON i UNITED STATES MAGISTRATE JUDGE