Petition for Writ of Certiorari — Pedro Rodriguez, Petitioner v. San Diego County, California, et al.

Supreme Court briefAug 14, 2018

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Case: 17-55267, 11/28/2017, ID: 10670069, DktEntry: 18, Page 1 of 2

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

NOV 282017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

PEDRO RODRIGUEZ,

Petitioner-Appellant,

COUNTY OF SAN DIEGO; MATT

GRECO, District Attorney,

No. 17-55267

D.C. No. 3:16-cv-03131-BAS-MDD

Southern District of California,

San Diego

[I)

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Respondents-Appellees.

Before: LEAVY and TALLMAN, Circuit Judges.

This appeal is from the denial of appellant's 28 U.S.C. § 2254 petition and

subsequent Federal Rule of Civil Procedure 60(b) motion. The request for a

certificate of appealability (Docket Entry No. 17) is denied because appellant has

not shown that "jurists of reason would find it debatable whether the petition 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. 473, 484 (2000); see also 28 U.S.C. § 2253(c)(2);

Gonzalez v. Thaler, 565 U.S. 134,140-41 (2012); Miller-El v. Cockrell, 537 U.S.

322, 327 (2003); United States v. Winkles, 795 F.3d 1134, 1143 (9th Cir. 2015),

cert. denied, 136 S. Ct. 2462 (2016); Lynch v. Blodgett, 999 F.2d 401, 403 (9th Cir.

1993) (order).

Case: 17-55267, 11/28/2017, ID: 10670069, DktEntry: 18, Page 2 of 2

Any pending motions are denied as moot.

DENIED.

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17-55267

Case 3:16-cv-03131-BAS-MDD Document 2 Filed 01/12/17 PagelD.21 Page 1 of 3

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Petitioner,

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V.

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DA MATT GRECO, et al.,

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Case No.: 16cv3131 BAS (MDD)

PEDRO RODRIGUEZ,

ORDER DISMISSING CASE

WITHOUT PREJUDICE

Respondent.

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Petitioner, a prisoner proceeding pro Se, has filed a Petition for Writ of Habeas

Corpus pursuant to 28 U.S.C. § 2254.

FAILURE TO SATSIFY FILING FEE REOUIREMENT

Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in

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forma pauperis. This Court cannot proceed until Petitioner has either paid the $5.00

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filing fee or qualified to proceed in forma pauperis. See Rule 3(a), 28 U.S.C. foll. § 2254.

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ABSTENTION

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Further, the Petition must be dismissed because it is clear that this Court is barred

from consideration of his claims by the abstention doctrine announced in Younger v.

26 Harris, 401 U.S. 37 (1971). Under Younger, federal courts may not interfere with

27 ongoing state criminal proceedings absent extraordinary circumstances. Id. at 45-46; see

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Middlesex Cty. Ethics Comm. v. Garden State Bar Assn, 457 U.S. 423, 431 (1982)

16cv3131 BAS (MDD)

Case 3:16-cv-03131-BAS-MDD Document 2 Filed 01/12/17 PagelD.22 Page 2 of 3

1 (Younger "espouse[d] a strong federal policy against federal-court interference with

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pending state judicial proceedings"). These concerns are particularly important in the

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habeas context where a state prisoner's conviction may be reversed on appeal, thereby

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rendering the federal issue moot. Sherwood v. Tompkins, 716 F.2d 632, 634 (9th Cir.

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Absent extraordinary circumstances, abstention under Younger is required when:

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(1) state judicial proceedings are ongoing; (2) the state proceedings involve important

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state interests; and (3) the state proceedings afford an adequate opportunity to raise the

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federal issue. Columbia Basin Apartment Ass 'n v. City of Pasco, 268 F.3d 791, 799 (9th

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Cir. 2001). All three of these criteria are satisfied here. At the time Petitioner filed the

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instant Petition, he admits his criminal case is currently pending in state court. (See Pet.

12 at 1, ECF No. 1.) Thus Petitioner's criminal case is still ongoing in the state courts.

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Further, there is no question that the state criminal proceedings involve important state

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Finally, Petitioner has failed to show that he has not been afforded an adequate

16 opportunity to raise the federal issues on direct appeal. Petitioner offers nothing to

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support a contention that the state courts do not provide him an adequate opportunity to

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raise his claims, and this Court specifically rejects such an argument. Indeed, Petitioner's

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claims that documents supporting the charges against him were forged are the type of

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claims that are normally resolved at a state court trial. See Drury v. Cox, 457 F.2d 764,

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764-65 (9th Cir. 1972) ("[O]nly in the most unusual circumstances is a defendant entitled

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to have federal interposition by way of injunction or habeas corpus until after the jury

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comes in, judgment has been appealed from that the case concluded in the state courts.")

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CONCLUSION

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Because Petitioner has failed to demonstrate that extraordinary circumstances exist

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which would relieve this Court of its obligation to abstain from interfering with ongoing

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state criminal proceedings, his Petition is DISMISSED without prejudice. Juidice v.

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16cv3131 BAS (MDD)

Case 3:16-cv-03131-BAS-MDD Document 2 Filed 01/12/17 PagelD.23 Page 3 of 3

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Vail, 430 U.S. 327, 337 (1977) (holding that if Younger abstention applies, a court may

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not retain jurisdiction but should dismiss the action).

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IT IS SO ORDERED.

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DATED: January 12, 2017

5W( 90"

H4n. Cynthia Bashant

United States District Judge

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16cv3131 BAS (MDD)

Case 3:16-cv-03131-BAS-MDD Document 12 Filed 03/13/17 PagelD.241 Page 1 of 2

FILED

MAR 13 2017

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEDRO RODRIGUEZ,

Petitioner-Appellant,

V.

COUNTY OF SAN DIEGO and MATT

GRECO, District Attorney,

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

No. 17-55267

D.C. No.

3:16-cv-03 131-BAS-MDD

Southern District of California,

San Diego

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Respondents-Appellees.

Before: Peter L. Shaw, Appellate Commissioner.

The district court has not issued or declined to issue a certificate of

appealability in this appeal, which appears to arise under 28 U.S.C. § 2254.

Accordingly, this case is remanded to the district court for the limited purpose of

granting or denying a certificate of appealability at the court's earliest convenience.

See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b); United States v. Asrar, 116 F.3d

1268, 1270 (9th Cir. 1997); see also Lynch v. Blodgett, 999 F.2d 401, 403 (9th Cir.

1993) (certificate of probable cause to appeal necessary to appeal denial of postjudgment motion for relief under Rule 60(b)); United States v. Winkles, 795 F.3d

1134, 1143 (9th Cir. 2015), cert. denied 136 S. Ct. 2462 (2016).

JWfPro Se

Case 3:16-cv-03131-BAS-MDD Document 12 Filed 03/13/17 PagelD.242 Page 2 of 2

If the district court issues a certificate of appealability, the court should

specify which issue or issues meet the required showing. See 28 U.S.C.

§ 2253(c)(3); Asrar, 116 F.3d at 1270. Under Asrar, if the district court declines to

issue a certificate, the court should state its reasons why a certificate of

appealability should not be granted, and the clerk of the district court shall forward

to this court the record with the order denying the certificate. See Asrar, 116 F.3d

at 1270. A briefing schedule will be established after resolution of the certificate

of appealability issue.

The Clerk shall send a copy of this order to the district court.

JW/ProSe

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PEDRO RODRIGUEZ,

Petitioner,

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Case No. 16-cv-03131-13AS-M])D

V.

DA MATT GRECO, et al.,

ORDER DECLINING TO ISSUE

CERTIFICATE OF

APPEALABILITY

FECF Nos. 11, 121

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Respondents.

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Petitioner Pedro Rodriguez, a state prisoner proceeding pro Se, filed a Petition

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for Writ of Habeas Corpus under 28 U.S.C. § 2254. On January 12, 2017, the Court

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dismissed the Petition for two reasons. (ECF No. 2.) First, the Court noted Petitioner

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had failed to pay the filing fee and had not moved to proceed informapauperis. (Id.)

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Second, the Court concluded it is barred from considering Petitioner's claims under

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the abstention doctrine announced in Younger v. Harris, 401 U.S. 37 (1971). The

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Court reasoned this doctrine bars consideration of Petitioner's claims because his

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criminal case is still ongoing in state court, the state criminal proceedings involve

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important state interests, and Petitioner fails to demonstrate he has not been afforded

26 an adequate opportunity to raise his claims in the state proceeding. (Id.) Further,

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Petitioner had not demonstrated extraordinary circumstances that would relieve the

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Court of its obligation to abstain from ongoing state criminal proceedings. (id.) Thus,

Cas 3:16-cv-03131-BAS-MDD Document 14 Filed 05/08/17 PagelD.247 Page 2 of S

1 the Court dismissed the Petition without prejudice. (Id.) The Court later denied a

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motion for relief from judgment under Federal Rule of Civil Procedure 60(b). (ECF

3 No. 8)

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On February 27, 2017, Petitioner appealed the Court's dismissal of his

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Petition. (ECF No. 9.) He also filed on March 1, 2017, a motion for a certificate of

6 appealability. (ECF No. 11.) On March 13, 2017, the Ninth Circuit issued an order

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(i) noting that this Court had not issued or declined to issue a certificate of

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appealability and (ii) remanding this case "for the limited purpose of granting or

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denying a certificate of appealability." (ECF No. 12.)

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Appeal from Order Dismissing Petition

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A petitioner may not appeal "the final order in a habeas corpus proceeding in

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which the detention complained of arises out of process issued by a State court"

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unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C. §

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2253(c). "A certificate of appealability may issue.

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a substantial showing of the denial of a constitutional right." Id. In Slack v. McDaniel,

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only if the applicant has made

17 529 U.S. 473, 484 (2000), the Supreme Court articulated a two-part standard

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governing the issuance of a certificate of appealability when a district court denies a

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habeas petition on procedural grounds. The Court stated:

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When the district court denies a habeas petition on procedural grounds

without reaching the prisoner's underlying constitutional claim, a

[certificate of appealability] should issue when the prisoner shows, at

least, [ 1 ] that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and [2] that

jurists of reason would find it debatable whether the district court was

correct in its procedural ruling.

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Id.

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Here, the Court principally dismissed the Petition because the Court conclIl

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it is barred from considering Petitioner's claims based on Younger abstention. (ECF

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Cas 3:16-cv03131-BAS-MDD Document 14 Filed 05/08/17 PagelD.248 Page 3 of 5

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claims, the Court's decision constitutes a dismissal on procedural grounds. See Slack,

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529 U.S. at 484; accord Strickland v. Wilson, 399 F. App'x 391,95 (l0thCir. 20 10)

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(noting dismissal based on Younger abstention was a dismissal on procedural grounds

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for certificate of appealability purposes). In applying the two-part standard

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mentioned above, the Court finds issuing a certificate of appealability from its order

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of dismissal is not appropriate. Reasonable jurists would not find debatable both

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whether (1) the petition states a valid claim of the denial of a constitutional right and

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(2) this Court's procedural ruling was correct. See Slack, 529 U.S. at 484. Thus, the

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Petition without prejudice. See 28 U.S.C. § 2253(c).

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II. Appeal from Order Denying Rule 60(b) Motion

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In Lynch v. Blodgett, 999 F.2d 401, 402-03 (9th Cir. 1993), the Ninth Circuit

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held that a certificate of probable cause—the predecessor to the certificate of

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appealability under the former version of 28 U.S.C. § 2253—was required to appeal

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the denial of a Rule 60(b) motion in a 28 U.S.C. § 2254 habeas proceeding. Since the

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revision to 28 U.S.C. § 2253 as part of the Antiterrorism and Effective Death Penalty

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Act of 1996 ("AEDPA"), the Ninth Circuit has only "implicitly held" that a petitioner

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must now obtain a certificate of appealability in this context. See United States v.

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Winkles, 795 F.3d 1134, 1140 (9th Cir. 2015) (discussing Langford v. Day, 134 F.3d

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1381 (9th Cir. 1998)). That said, in United States v. Winkles, the Ninth Circuit held a

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petitioner must obtain a certificate of appealability to appeal the denial of a Rule

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60(b) motion in an analogous context—a habeas proceeding under 28 U.S.C. § 2255.

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795 F.3d at 1143. In that context, the court held a certificate should issue "if the

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movant shows that (1) jurists of reason would find it debatable whether the district

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

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

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claim of the denial of a constitutional right." Id.

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Several district courts have since concluded the Ninth Circuit's reasoning in

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Winkles for habeas proceedings under 28 U.S.C. § 2255 is equally applicable to those

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under 28 U.S.C. § 2254. E.g., Sakellaridis v. Davey, No. 15-cv-01154-DAD-EPG-

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HC, 2017 WL 272216, at *2 (E.D. Cal. Jan. 20, 2017); Adams v. Hedgpeth, No. LA

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CV- 1103 852 VBF-FFM, 2016 WL 4035607, at *14 (C.D. Cal. June 8,2016); Ceja

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v. Scribner, No. LA CV 07-00606-VBF-KES, 2016 WL 3996152, at *8 (C.D. Cal.

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Jan. 19, 2016). This Court agrees. In Winkles, the Ninth Circuit noted that "section

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2255 'was intended to mirror § 2254 in operative effect,' and that the language used

9 in sections 2253(c)(1)(A) and (c)(1)(B) is functionally identical." 795 F.3d at 1141

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(quoting Jones v. Ryan, 733 F.3d 825, 830 n.1 (9th Cir. 2013)). Accordingly, the

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Court will adapt the standard from Winkles for § 2255 proceedings and apply it to the

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Court's denial of Petitioner's Rule 60(b) motion in this § 2254 proceeding.

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The Court denied Petitioner's Rule 60(b) motion because it concluded he had

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not demonstrated the requisite extraordinary circumstances for relief. (ECF No. 8 at

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2:14-21.) The Court finds Petitioner has not demonstrated that (1) jurists of reason

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would find it debatable whether this Court abused its discretion in denying the Rule

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60(b) motion, and (2) 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. See Winkles, 795 F.3d at

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1143. Consequently, the Court declines to issue a certificate of appealability from its

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order denying Petitioner's Rule 60(b) motion.

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III. Conclusion

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In sum, in response to the Ninth Circuit's order (ECF No. 12), the Court

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declines to issue a certificate of appealability from either (a) its order dismissing the

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Petition without prejudice or (b) its order denying Petitioner's Rule 60(b) motion.

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The Court therefore also DENIES Petitioner's motion for a certificate of

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appealability (ECF No. 11).

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IT IS SO ORDERED.

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DATED: May 8,2017•

44a1t

lioii.ViiThia Bashant

United States District Judge

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

MAY 31 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

PEDRO RODfflGUEZ,

Petitioner-Appellant,

V.

No. 17-55267

D.C. No. 3:16-cv-03131-BAS-MDD

Southern District of California,

San Diego

COUNTY OF SAN DIEGO; MATT

GRECO, District Attorney,

Respondents-Appellees.

Before: W. FLETCHER and WATFORD, Circuit Judges.

Appellant has filed a combined motion for reconsideration and motion for

reconsideration en banc (Docket Entry No. 23).

The motion for reconsideration is denied and the motion for reconsideration

en banc is denied on behalf of the court. See 9th Cir. R. 27-10; 9th Cir. Gen. Ord.

6.11.

No further filings will be entertained in this closed case.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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