The opinion
1 UNITED STATES DISTRICT COURT
2 NORTHERN DISTRICT OF CALIFORNIA
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GREGORY L. BROWN,
4 Case No. 21-cv-02649-YGR (PR)
Petitioner,
5 ORDER GRANTING REQUEST FOR
v. CERTIFICATE OF APPEALABILITY;
6 DENYING MOTION FOR
M. ATCHLEY, Warden, APPOINTMENT OF COUNSEL; AND
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Respondent. GRANTING REQUEST TO PROCEED
8 IN FORMA PAUPERIS ON APPEAL
9 Petitioner Gregory L. Brown filed the instant pro se petition for a writ of habeas corpus
10 pursuant to 28 U.S.C. § 2254. On May 6, 2021, the Court dismissed the petition because it was a
11 second petition, successive to his previous case, Case No. C 98-02013 MMC (PR), and he had not
12 obtained from the Ninth Circuit Court of Appeals an order authorizing the district court to
13 consider the petition.
14 On May 24, 2021, Petitioner filed a notice of appeal and an application for a certificate of
15 appealability (“COA”). Dkt. 9. Petitioner also moves for appointment of counsel and leave to
16 proceed in forma pauperis on appeal. Id.
17 In an Order dated July 28, 2021, the Ninth Circuit remanded the case to the district court
18 “for the limited purpose of granting or denying a [COA] at the court’s earliest convenience.” Dkt.
19 11 at 1.
20 An appeal may not be taken to the court of appeals from the final order in a habeas corpus
21 proceeding unless the petitioner first obtains a COA. See 28 U.S.C. § 2253(c); Fed. R. App. P.
22 22(b). Section 2253(c)(1) applies to an appeal of a final order entered on a procedural question
23 antecedent to the merits, as here. See Slack v. McDaniel, 529 U.S. 473, 483 (2000).
24 “Determining whether a COA should issue where the petition was dismissed on procedural
25 grounds has two components, one directed at the underlying constitutional claims and one directed
26 at the district court’s procedural holding.” Id. at 484-85. “When the district court denies a habeas
27 petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a
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whether the petition states a valid claim of the denial of a constitutional right and that jurists of
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reason would find it debatable whether the district court was correct in its procedural ruling.” Id.
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at 484. As each of these components is a “threshold inquiry,” the federal court “may find that it
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can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue
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whose answer is more apparent from the record and arguments.” Id. at 485. Supreme Court
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jurisprudence “allows and encourages” federal courts to first resolve the procedural issue, as was
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done here. See id.
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Here, the Court dismissed the instant petition after finding that it was a second or
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successive petition. Upon review, the Court now finds that Petitioner was not challenging the
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same conviction and sentence at issue here, and instead he alleged ineffective assistance of
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counsel based on his court-appointed trial counsel’s actions relating to the motion/petition for
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resentencing under California Penal Code § 1170.95. See Dkt. 1 at 6-19. In light of this, jurists of
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reason could find it debatable whether this Court was correct in finding that Petitioner was
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challenging the same conviction/sentence. Thus, the motion for a COA is GRANTED.1 Dkt. 9.
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Also before the Court is Petitioner’s motion for appointment of counsel, which is DENIED
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without prejudice to his renewing the motion in the court of appeals. Dkt. 9. Petitioner’s request
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for leave to proceed in forma pauperis on appeal is GRANTED. Dkt. 9. The Clerk of the Court
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shall process the notice of appeal.
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21 1 The Court notes that Petitioner filed a prior action, Case No. C 20-cv-3405 YGR (PR),
which it also dismissed after finding that his action was a second or successive petition. See Dkt.
22 7 in Case No. 20-cv-3405 YGR (PR). Petitioner appealed, and the Ninth Circuit has not yet ruled
on the appeal. See Ninth Circuit Case No. 20-16290. This Court denied Petitioner’s request for a
23 COA. See Dkt. 12 in Case No. 20-cv-3405 YGR (PR). However, upon review, the Court now
finds that Petitioner was not challenging the same conviction and sentence, and instead his claims
24 related to the state court’s denial of his state habeas petition upon finding that the amendments to
California Penal Code §§ 188 and 189 did not affect his convictions. See Dkt. 1 at 6-16 in Case
25 No. 20-cv-3405 YGR (PR). In addition, Petitioner’s prior case seems to be unexhausted because
he had not presented his claims to the state appellate and supreme courts when he filed that case in
26 2020. See id. at 6 fn. 1. Thus, even though dismissal of that prior action still seems to have been
appropriate, the request for a COA should have been granted because jurists of reason could find it
27 debatable whether this Court was correct in finding that Petitioner was challenging the same
conviction/sentence.
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This Order terminates Docket no. 9.
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IT IS SO ORDERED.
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Dated: August 4,202]
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5 DGE YVONNE GONZALEZ ROGERS
6 United States District Judge
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