Petition for Writ of Certiorari — Leonard Uchenna Nwafor, Petitioner v. United States

UNITED STATES COURT OF APPEALS

FILED

JUL 172017

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

LEONARD UCHENNA NWAFOR,

Petitioner-Appellant,

No. 17-55399

D.C. No. 2:14-cv-03732-JFW

Central District of California,

Los Angeles

UNITED STATES OF AMERICA,

Respondent-Appellee.

Before:

KOZINSKJ and HAWKINS, Circuit Judges.

The request for a certificate of appealability (Docket Entry No. 3) is denied

because appellant has not shown that "jurists of reason would find it debatable

whether the [section 2255 motion] states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S.

4731, 484 (2000); see also 28 U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 565 U.S.

134, 140-41 (2012).

Any pending motions are denied as moot.

DENIED.

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

SEP 8 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

V.

LEONARD UCHENNA NWAFOR,

No. 17-55399

D.C. No. 2:14-cv-03732-JFW

Central District of California,

Los Angeles

ORDER

Defendant-Appellant.

Before:

CALLAHAN and M. SMITH, Circuit Judges.

The motion for reconsideration (Docket Entry Nos. 8 & 9) is denied. See

9th Cir. R. 27-10.

No further filings will be entertained in this closed case.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES

Case No.

-

GENERAL

CV 14-3732-JFW

Date: March 30, 2017

CR 08-126-JFW

Title:

Leonard Uchenna Nwafor -v- United States of America

PRESENT:

HONORABLE JOHN F. WALTER, UNITED STATES DISTRICT JUDGE

None Present

Court Reporter

Shannon Reilly

Courtroom Deputy

ATTORNEYS PRESENT FOR PLAINTIFFS:

None

PROCEEDINGS (IN CHAMBERS):

ATTORNEYS PRESENT FOR DEFENDANTS:

None

ORDER DENYING CERTIFICATE OF APPEALABILITY

On March 23, 2017, Petitioner Leonard Uchenna Nwafor ("Petitioner") filed a "Notice of

Appeal in Regards to a Certificate of Appealability —28 ftS.C. § 2253 on a Motion to Set Aside a

Previous Judgment Pursuant to Fed. R. Civ. P. 60(b), appealing this Court's Order filed on

February 27, 2017 [Docket No. 17]. On March 29, 2017, the Ninth Circuit remanded this case to

this Court for the limited purpose of granting or denying a certificate of appealability ("COA").

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A petitioner is required to obtain a COA in order to appeal from the denial of a Rule 60(b)

motion arising out of the denial of a section 2255 motion. United States v. Winkles, 795 F.3d 1134,

1143 (9th Cir. 2015), cert. denied 136 S. Ct. 2462 (2016); see also Slack v. McDaniel, 529 U.S.

484, 482 (2000) (certificate of appealability is required to obtain appellate review of the district

court's dismissal of a habeas corpus petition on procedural grounds).

"[A] COA should only issue for the appeal arising from the denial of a Rule 60(b)' motion in a

section 2255 proceeding if the movant shows that (1) jurists of reason would find it debatable

whether the district court abused its discretion in denying the Rule 60(b) motion and (2) jurists of

reason would find it debatable whether the underlying section 2255 motion states a valid claim of

the denial of a constitutional right." Winkles, 795 F.3d at 1143. Because the Court treated

Petitioner's Motion to Set Aside a Previous Judgment Pursuant to Fed. R. Civ. P. Rule 60(b)(4) &

(6) as a disguised second or successive habeas motion, the Court will also set out the standard for

a certificate of appealability for the dismissal of a § 2255 petition. When, as in the present case, a

district court has dismissed a petition on procedural grounds, a COA should only issue if the

petitioner can show both (1) "that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling"; and (2) "that jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a constitutional right." Id.

Page 1 of 2

Initials of Deputy Clerk sr

In this case, Petitioner cannot satisfy the first step of either of the two-step standards.

Nothing in the record indicates that the Court's Order treating Petitioner's Rule 60(b) motion as a

disguised second or successive habeas motion and finding that it lacks jurisdiction to consider

Petitioner's motion is reasonably debatable or subject to differing resolution.

Accordingly, the request for a certificate of appealability is DENIED.

IT IS SO ORDERED.

Page 2 of 2

Initials of Deputy Clerk sr

Case 2:08-cr-00526-JFW Document 184 Piled 03/27/14 Page 27 of 29 Page ID #:2387

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The Defendant shall cooperate in the collection

of a DNA sample from the

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from the Defendant.

All right. Mr. Sherman, any requests for a

designation?

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MR. SHERMAN: No, Your Honor.

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THE COURT: All ri gh t. Let me also advisè

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with respect to Case No. 126, under the

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Defendant's plea agreement with the Gov e rnment, the

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Defendant might have waived most of his right to appeal

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this sentence, and the plea agreement will govern thL

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issue. However, if he retained the iz.ight to appeal, .he

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Defendant must file a notice of appeal within ten days

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of today, or he'll lose his right to appeal.

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In connection with the other case, tFe 526,

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thi. re was no plea agreement. So I advise that the

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Defendant, if he wishes to appeal his conviction and

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sentence, must file notice of appeal within ten days of

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today, or he'll lose his right to appeal.

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Defendant is unable to afford an attorney for his

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appeal, 0ne -may be 'appointed at no cost to him.

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If .the

Is there any counts in the mail case that we

need to dismiss?

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MS. SOPORI: No, Your Honor.

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THE COURT: You sure?

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MS. SOPORI: Yes, it was a one-count

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