Mendoza-Gomez v. Bennett

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 FRANCISCO MENDOZA-GOMEZ, 9 Petitioner, CASE NO. 2:24-cv-0743-RSM-TLF 10 v. ORDER DENYING CERTIFICATE OF APPEALABILITY 11 JASON BENNETT, 12 Respondent.

13 This matter comes before the Court on referral from the Ninth Circuit Court of Appeals for 14 the limited purpose of granting or denying a certificate of appealability. See Dkt. #43. 15 On August 13, 2024, The Court adopted a Report and Recommendation finding that 16 Petitioner had failed to respond to an order to show cause why the petition should not be dismissed 17 for failure to exhaust. Dkt. #9. The Court dismissed this action without prejudice for failure to 18 prosecute. Id. Petitioner filed an appeal. Dkt. #10. Then he filed a Rule 60(b) Motion. Dkt. #21. 19 The Court denied Petitioner’s request for a certificate of appealability. Dkt. #14. The Ninth Circuit 20 denied Petitioner’s request for a certificate of appealability, denied all pending motions, and closed 21 the appeal. Dkt. #33. Then Petitioner filed another nearly identical Rule 60(b) Motion. Dkt. #34. 22 The Court, via minute order, struck that filing as “duplicative, procedurally improper, and moot.” 23 Dkt. #36. Petitioner has filed several other duplicative, procedurally improper, and moot filings, 1 as well as another appeal. See Dkts. #37 through #41. Now the Ninth Circuit has remanded this 2 case again “for the limited purpose of granting or denying a certificate of appealability at the 3 court’s earliest convenience.” Dkt. #43. 4 Rule 11(a) of the Rules Governing Section 2254 Cases provides that “[t]he district court

5 must issue or deny a certificate of appealability when it enters a final order adverse to the 6 applicant.” Under the Antiterrorism and Effective Death Penalty Act of 1996, a habeas petitioner 7 cannot appeal from a district court judgement unless he obtains a certificate of appealability. See 8 28 U.S.C. § 2253; Slack v. McDaniel, 529 U.S. 473, 481-82 (2000). To obtain one, a petitioner 9 must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 10 The petitioner “need not show that he should prevail on the merits” but only that the issue presents 11 a “question of some substance,” that is, an issue that (1) is “debatable among jurists of reason,” (2) 12 could be “resolved in a different manner” by courts, (3) is “adequate to deserve encouragement to 13 proceed further,” or (4) is not “squarely foreclosed by statute, rule or authoritative court decision” 14 or “lacking any factual basis in the record.” Barefoot v. Estelle, 463 U.S. 880, 893–94 & n.4

15 (1984); Slack, 529 U.S. at 483-84. 16 The Court has considered the above standards and again concludes that such a certificate 17 should not issue in this case. This appeal of a minute order, in a closed case after a previous appeal 18 was denied, is without merit. This case was closed for the reasons stated in the Report and 19 Recommendation, namely that petitioner was ordered to timely show cause why this case should 20 not be dismissed for failure to exhaust and failed to do so. Petitioner’s Objections failed to address 21 the issues raised in the Order to Show Cause, or to explain Petitioner’s failure to respond by the 22 deadline. The Court found, and continues to find, that Petitioner states no valid basis for declining 23 1 to adopt the Report and Recommendation. The grounds for dismissal without prejudice are not 2 debatable among jurists of reason and could not be resolved in a different manner. 3 The Court notes its understanding that future rulings on a certificate of appealability are 4 not required in this case because any new appeal does not concern “a final order adverse to the

5 applicant” and because the Court has already denied a certificate of appealability. The Court will 6 continue to issue minute orders striking duplicative, procedurally improper, and/or moot motions 7 filed by Petitioner. 8 Given all of the above, the Court finds and ORDERS that a certificate of appealability 9 should not issue in this case. The Court directs the Clerk to send a copy of this Order to the Ninth 10 Circuit Court of Appeals. 11 Dated this 3rd day of September, 2025. 12 A 13

14 RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE 15

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