Phillips v. Gonzalez
Filing
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ORDER DISMISSING the 1 Petition as Successive Pursuant to 28 U.S.C. 2244(b); ORDER DISMISSING Petitioner's 5 Motion as MOOT and DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY; ORDER DIRECTING the Clerk to CLOSE the Action signed by Magistrate Judge Sheila K. Oberto on 11/9/2011. CASE CLOSED. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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NICHOLAS EUGENE PHILLIPS,
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Petitioner,
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v.
TERRI GONZALEZ, Warden,
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Respondent.
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1:11-cv—01842-SKO-HC
ORDER DISMISSING THE PETITION AS
SUCCESSIVE PURSUANT TO 28 U.S.C.
§ 2244(b) (Doc. 1)
ORDER DISMISSING PETITIONER’S
MOTION AS MOOT (Doc. 5) AND
DECLINING TO ISSUE A CERTIFICATE
OF APPEALABILITY
ORDER DIRECTING THE CLERK TO
CLOSE THE ACTION
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Petitioner is a state prisoner proceeding pro se and in
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forma pauperis with a petition for writ of habeas corpus pursuant
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to 28 U.S.C. § 2254.
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Petitioner has consented to the jurisdiction of the United States
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Magistrate Judge to conduct all further proceedings in the case,
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including the entry of final judgment, by manifesting consent in
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a signed writing filed by Petitioner on October 26, 2011 (doc.
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4).
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filed on October 7, 2011, and transferred to this division of
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this Court on November 4, 2011.
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///
Pursuant to 28 U.S.C. § 636(c)(1),
Pending before the Court is the petition, which was filed on
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I.
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Rule 4 of the Rules Governing Section 2254 Cases in the
Screening the Petition
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United States District Courts (Habeas Rules) requires the Court
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to make a preliminary review of each petition for writ of habeas
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corpus.
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plainly appears from the petition and any attached exhibits that
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the petitioner is not entitled to relief in the district
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court....”
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(9th Cir. 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th
The Court must summarily dismiss a petition "[i]f it
Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420
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Cir. 1990).
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all grounds of relief available to the Petitioner; 2) state the
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facts supporting each ground; and 3) state the relief requested.
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Notice pleading is not sufficient; rather, the petition must
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state facts that point to a real possibility of constitutional
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error.
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O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v.
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Allison, 431 U.S. 63, 75 n.7 (1977)).
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that are vague, conclusory, or palpably incredible are subject to
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summary dismissal.
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Cir. 1990).
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Habeas Rule 2(c) requires that a petition 1) specify
Rule 4, Advisory Committee Notes, 1976 Adoption;
Allegations in a petition
Hendricks v. Vasquez, 908 F.2d 490, 491 (9th
Further, the Court may dismiss a petition for writ of habeas
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corpus either on its own motion under Habeas Rule 4, pursuant to
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the respondent's motion to dismiss, or after an answer to the
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petition has been filed.
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8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43
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(9th Cir. 2001).
Advisory Committee Notes to Habeas Rule
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II.
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Petitioner is serving a sentence of thirty-two (32) years to
Background
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life pursuant to convictions of attempted murder, mayhem, and
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assault with a deadly weapon with great bodily injury suffered on
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September 1, 1998, in the Kern County Superior Court.
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In the petition, Petitioner challenges the judgment on the
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grounds that the prosecutor failed to prove with relevant and
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sufficient evidence Petitioner’s having suffered a prior
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conviction with a great bodily injury enhancement, uneven
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application of California’s Three Strikes Law in violation of
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Petitioner’s right to the equal protection of the laws, and the
(Pet. 1.)
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allegedly ineffective assistance of his appellate counsel.
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at 4, 7-8.)
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(Id.
The present petition is not the first petition filed with
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respect to the judgment pursuant to which Petitioner is detained.
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The Court may take judicial notice of court records.
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Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333
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(9th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626,
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635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9th Cir. 1981).
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The Court will take judicial notice of its own dockets.
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Fed. R.
On July 15, 2005, a habeas petition challenging Petitioner’s
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Kern County conviction and sentence was denied on the merits by
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this Court in Nicholas E. Phillips v. G. J. Giurbino, Warden,
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1:02-cv-05251-REC-TAG.
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the fairness of his trial.
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merits and entered judgment for the respondent.
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31; 40; 41.)
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on February 3, 2006, the Court of Appeals denied Petitioner’s
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request for a certificate of appealability.
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///
Petitioner raised issues pertaining to
The Court denied the petition on the
(Docs. 36, 1, 4,
The docket reflects that an appeal was filed, and
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III. Successive Petition
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Because the petition was filed after April 24, 1996, the
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effective date of the Antiterrorism and Effective Death Penalty
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Act of 1996 (AEDPA), the AEDPA applies in this proceeding.
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v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008
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(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
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Lindh
Under the AEDPA, a federal court must dismiss a second or
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successive petition that raises the same grounds as a prior
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petition.
28 U.S.C. § 2244(b)(1).
The Court must also dismiss a
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second or successive petition raising a new ground unless the
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petitioner can show that 1) the claim rests on a new,
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retroactive, constitutional right or 2) the factual basis of the
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claim was not previously discoverable through due diligence, and
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the new facts establish by clear and convincing evidence that but
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for the constitutional error, no reasonable factfinder would have
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found the applicant guilty of the underlying offense.
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§ 2244(b)(2)(A)-(B).
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28 U.S.C.
However, it is not the district court that decides whether a
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second or successive petition meets these requirements, which
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allow a petitioner to file a second or successive petition.
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Section 2244(b)(3)(A) provides, “Before a second or successive
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application permitted by this section is filed in the district
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court, the applicant shall move in the appropriate court of
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appeals for an order authorizing the district court to consider
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the application.”
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from the Ninth Circuit before he or she can file a second or
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successive petition in district court.
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U.S. 651, 656-657 (1996).
In other words, a petitioner must obtain leave
See Felker v. Turpin, 518
This Court must dismiss any claim
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presented in a second or successive habeas corpus application
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under section 2254 that was presented in a prior application
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unless the Court of Appeals has given Petitioner leave to file
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the petition.
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characterized as jurisdictional.
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147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th
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Cir. 2001).
28 U.S.C. § 2244(b)(1).
This limitation has been
Burton v. Stewart, 549 U.S.
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A disposition is “on the merits” if the district court
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either considered and rejected the claim, or determined that the
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underlying claim would not be considered by a federal court.
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McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (citing
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Howard v. Lewis, 905 F.2d 1318, 1322 (9th Cir. 1990)).
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Here, the first petition concerning the Kern County judgment
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was denied on the merits.
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has obtained prior leave from the Ninth Circuit to file his
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successive petition attacking the conviction.
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court has no jurisdiction to consider Petitioner’s renewed
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application for relief from that conviction under section 2254
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and must dismiss the petition.
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651, 656-57; Burton v. Stewart, 549 U.S. 147, 152; Cooper v.
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Calderon, 274 F.3d 1270, 1274.
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in bringing this petition for writ of habeas corpus, he must file
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for leave to do so with the Ninth Circuit.
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§ 2244(b)(3).
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IV.
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On October 31, 2011, Petitioner filed a request for thirty
Petitioner makes no showing that he
Accordingly, this
See, Felker v. Turpin, 518 U.S.
If Petitioner desires to proceed
See 28 U.S.C.
Petitioner’s Motion for Injunctive Relief
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days of law library privileges, which the Court understands to be
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a motion for injunctive relief.
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Because the petition must be dismissed for lack of
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jurisdiction, Petitioner’s motion for injunctive relief will be
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dismissed as moot.
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V.
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Unless a circuit justice or judge issues a certificate of
Certificate of Appealability
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appealability, an appeal may not be taken to the Court of Appeals
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from the final order in a habeas proceeding in which the
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detention complained of arises out of process issued by a state
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court.
28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537
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U.S. 322, 336 (2003).
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only if the applicant makes a substantial showing of the denial
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of a constitutional right.
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standard, a petitioner must show that reasonable jurists could
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debate whether the petition should have been resolved in a
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different manner or that the issues presented were adequate to
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deserve encouragement to proceed further.
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537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484
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(2000)).
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jurists of reason would find it debatable whether the petition
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states a valid claim of the denial of a constitutional right and
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that jurists of reason would find it debatable whether the
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district court was correct in any procedural ruling.
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McDaniel, 529 U.S. 473, 483-84 (2000).
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A certificate of appealability may issue
28 U.S.C. § 2253(c)(2).
Under this
Miller-El v. Cockrell,
A certificate should issue if the Petitioner shows that
Slack v.
In determining this issue, a court conducts an overview of
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the claims in the habeas petition, generally assesses their
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merits, and determines whether the resolution was wrong or
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debatable among jurists of reason.
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U.S. at 336-37.
Miller-El v. Cockrell, 537
It is necessary for an applicant to show more
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than an absence of frivolity or the existence of mere good faith;
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however, it is not necessary for an applicant to show that the
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appeal will succeed.
Id. at 338.
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A district court must issue or deny a certificate of
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appealability when it enters a final order adverse to the
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applicant.
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Rule 11(a) of the Rules Governing Section 2254 Cases.
Here, Petitioner has not demonstrated that jurists of reason
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would find it debatable whether or not the petition states a
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valid claim of the denial of a constitutional right, or that the
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petition must be dismissed as successive.
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made the substantial showing required for issuance of a
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certificate of appealability.
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Petitioner has not
Therefore, the Court will decline to issue a certificate of
appealability.
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VI. Disposition
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Accordingly, it is ORDERED that:
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1) The petition is DISMISSED as successive; and
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2)
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as moot; and
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3) The Court DECLINES to issue a certificate of
appealability; and
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Petitioner’s motion for injunctive relief is DISMISSED
4) The Clerk is DIRECTED to close this action because the
dismissal will terminate the action in its entirety.
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IT IS SO ORDERED.
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Dated:
ie14hj
November 9, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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