Joseph Carrington v. Robert Neuschmid

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSEPH CARRINGTON, Case No. 2:19-cv-02771-FMO-MAA 12 Petitioner, ORDER DIRECTING ENTRY OF 13 v. JUDGMENT AND DENYING CERTIFICATE OF 14 ROBERT NEUSCHMID, Warden, APPEALABILITY 15 Respondent. 16 17 18 On February 20, 2020, the Court granted Respondent’s Motion to Dismiss 19 (ECF No. 13) as to the exhaustion grounds therein. (“Order,” ECF No. 27, at 10.) 20 In light of Petitioner’s request to have a further opportunity “to file a motion for 21 stay and/or decide[] to dismiss unexhausted claims and proceed forward on the 22 exhausted claims” (ECF No. 26, at 6), the Court deferred entry of judgment for 23 fourteen (14) days after the date of the Order. (Order at 10.) To date, Petitioner has 24 not moved the Court for leave to amend the First Amended Petition to delete his 25 unexhausted claims or move for a stay pursuant to Kelly v. Small, 315 F.3d 1063 26 (9th Cir. 2003). Accordingly, the Court directs the Clerk to enter judgment denying 27 the First Amended Petition and dismissing the action without prejudice. 28 /// 1 Rule 11 of the Rules Governing Section 2254 Cases in the United States 2 District Courts provides: 3 (a) Certificate of Appealability. The district court must 4 issue or deny a certificate of appealability when it enters a final order 5 adverse to the applicant. Before entering the final order, the court may 6 direct the parties to submit arguments on whether a certificate should 7 issue. If the court issues a certificate, the court must state the specific 8 issue or issues that satisfy the showing required by 28 U.S.C. 9 § 2253(c)(2). If the court denies a certificate, a party may not appeal 10 the denial but may seek a certificate from the court of appeals under 11 Federal Rule of Appellate Procedure 22. A motion to reconsider a 12 denial does not extend the time to appeal. 13 (b) Time to Appeal. Federal Rule of Appellate Procedure 14 4(a) governs the time to appeal an order entered under these rules. A 15 timely notice of appeal must be filed even if the district court issues a 16 certificate of appealability. These rules do not extend the time to 17 appeal the original judgment of conviction. 18 Pursuant to 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue 19 “only if the applicant has made a substantial showing of the denial of a 20 constitutional right.” The Supreme Court has held that this standard means a 21 habeas petitioner must show that “reasonable jurists could debate whether (or, for 22 that matter, agree that) the petition should have been resolved in a different manner 23 or that the issues presented were adequate to deserve encouragement to proceed 24 further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation and quotation 25 marks omitted). 26 /// 27 /// 28 /// 1 After duly considering Petitioner’s contentions in support of the claims 2 alleged in the First Amended Petition, the Court finds that Petitioner has not 3 satisfied the requirements for a certificate of appealability. Accordingly, the Court 4 declines to issue a certificate of appealability. 5 6 DATED: March 19, 2020 7 _________/s/_________________________ 8 FERNANDO M. OLGUIN 9 UNITED STATES DISTRICT JUDGE

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