McNeely v. Chappell
Filing
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ORDER by Judge Claudia Wilken DENYING CERTIFICATE OF APPEALABILITY; DENYING 12 LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL; DIRECTING CLERK TO TRANSMIT FILE TO NINTH CIRCUIT. (Attachments: # 1 Certificate/Proof of Service) (ndr, COURT STAFF) (Filed on 8/29/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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DOCK McNEELY,
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No. C 12-2599 CW (PR)
Petitioner,
Ninth Circuit Case No. 12-16559
v.
KEVIN CHAPPELL, Warden,
Respondent.
/
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ORDER DENYING CERTIFICATE OF
APPEALABILITY; DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS ON
APPEAL; DIRECTING CLERK TO
TRANSMIT FILE TO NINTH CIRCUIT
(Docket no. 12)
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United States District Court
For the Northern District of California
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Petitioner, a state prisoner incarcerated at San Quentin State
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Prison, filed the present pro se petition for a writ of habeas
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corpus under 28 U.S.C. § 2254.
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that his arrest and current incarceration violate the Ninth
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Circuit’s ruling in McNeely v. Blanas, 336 F.3d 822 (9th Cir.
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2003), which found he had been denied his constitutional right to a
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speedy trial, reversed the denial of his habeas petition by the
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United States District Court for the Eastern District of
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California, and ordered his immediate release from custody with
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prejudice to re-prosecution of the same criminal charges.
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Petitioner argues in the petition
On May 25, 2012, this Court dismissed the present petition,
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finding that it is duplicative of McNeely v. Chappell, C 12-1483 CW
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(PR), a habeas petition filed by Petitioner in this district on
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March 23, 2012, which the Court ordered transferred to the Eastern
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District on April 9, 2012.
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Docket no. 5.
Petitioner has filed a Notice of Appeal and a request to
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proceed in forma pauperis (IFP) on appeal.
The Ninth Circuit has
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remanded the case to this Court for the limited purpose of granting
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or denying a certificate of appealability (COA).
Docket no. 16.
“Determining whether a COA should issue where the petition was
dismissed on procedural grounds has two components, one directed at
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the underlying constitutional claims and one directed at the
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district court’s procedural holding.”
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473, 484-85 (2000).
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petition on procedural grounds without reaching the prisoner’s
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underlying constitutional claim, a COA should issue when the
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prisoner shows, at least, that jurists of reason would find it
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debatable whether the petition states a valid claim of the denial
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of a constitutional right and that jurists of reason would find it
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United States District Court
For the Northern District of California
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debatable whether the district court was correct in its procedural
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ruling.”
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inquiry,” the federal court “may find that it can dispose of the
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application in a fair and prompt manner if it proceeds first to
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resolve the issue whose answer is more apparent from the record and
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arguments.”
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Slack v. McDaniel, 529 U.S.
“When the district court denies a habeas
Id. at 484.
As each of these components is a “threshold
Id. at 485.
For the reasons discussed above, Petitioner has not shown that
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jurists of reason would find it debatable whether the Court was
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correct in its procedural ruling that the petition is duplicative
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of the petition transferred to the Eastern District.
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a COA is DENIED and Petitioner’s request to proceed IFP on appeal
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is DENIED.
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to proceed on appeal in this matter without a COA is DENIED.
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Docket no. 12.
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Accordingly,
Additionally, Petitioner’s request that he be allowed
The Clerk of the Court shall transmit a copy of this Order,
together with the case file, to the Ninth Circuit.
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This Order terminates Docket no. 12.
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IT IS SO ORDERED.
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Dated: 8/29/2012
______________________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE
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