United States District Court, D. Hawaii
CALVIN D. ELIZARES Petitioner,
JOSEPH TAYLOR, Respondent.
ORDER DENYING PETITIONER CALVIN D. ELIZARES'
APPLICATION FOR A CERTIFICATE OF APPEALABILITY (ECF NO.
Gillmor, United States District Judge
Calvin D. Elizares has filed a request for a Certificate of
Appealability. Petitioner seeks to appeal the Court's
October 28, 2016 Order Denying, In Part, and Dismissing, In
Part, Petitioner's Federal Rules of Civil Procedure Rule
60(b) Motion for Relief from a Final Judgment, Order or
Application for a Certificate of Appealability (ECF No. 7) is
15, 2016, Petitioner Calvin D. Elizares filed a motion
entitled FEDERAL RULES OF CIVIL PROCEDURE 60(b): MOTION FOR
RELIEF FROM A FINAL JUDGMENT, ORDER, OR PROCEEDING. (ECF No.
October 28, 2016, this Court issued an ORDER DENYING, IN
PART, AND DISMISSING, IN PART, PETITIONER CALVIN D.
ELIZARES' FEDERAL RULES OF CIVIL PROCEDURE RULE 60(b)
MOTION FOR RELIEF FROM A FINAL JUDGMENT, ORDER OR PROCEEDING.
(ECF No. 5).
Court found that Petitioner's Motion contained both a
FEDERAL RULE OF CIVIL PROCEDURE RULE 60(b) Motion and a
second or successive habeas petition filed pursuant to 28
U.S.C. § 2254. (Order at p. 11, ECF No. 5). The Order
denied the Rule 60(b) Motion and dismissed the portion of
Petitioner's Motion that was an unauthorized second or
successive 2254 Petition. (Id.)
November 29, 2016, Petitioner filed an APPLICATION FOR A
CERTIFICATE OF APPEALABILITY. (ECF No. 7).
FOR A CERTIFICATE OF APPEALABILITY
of Appealability for the Denial of a Rule 60(b)
United States Supreme Court has declined to decide if a
habeas petitioner must obtain a certificate of appealability
as a prerequisite to appealing the denial of a Rule 60(b)
Motion. Gonzlez v. Crosby, 545 U.S. 524, 535 n.7
Ninth Circuit Court of Appeals has concluded that a
certificate of appealability is required if a petitioner
seeks review of the denial of a Rule 60(b) Motion relating to
underlying habeas corpus proceedings. United States v.
Winkles, 795 F.3d 1134, 1142 (9th Cir. 2015); see
West v. Schneiter, 485 F.3d 393, 394 (7th Cir. 2007);
Langford v. Day, 134 F.3d 1381, 1382 (9th Cir.
of Appealability for the Dismissal of an Unauthorized Second
or Successive Habeas Petition
is no appeal as of right for state prisoners in habeas corpus
proceedings under Section 2254. 28 U.S.C. §
2253(c)(1)(A). A petitioner challenging “the final
order in a habeas corpus proceeding” must obtain a
certificate of appealability. Id.; Harbison v.
Bell, 556 U.S. 180, 183 (2009).
phrase “final order in a habeas proceeding” has
been interpreted broadly to include proceedings beyond a
district court's order denying the petition for habeas
corpus itself. Winkles, 795 F.3d at 1139.
appellate courts have held that a certificate of
appealability is required to appeal an order dismissing an
unauthorized second or successive habeas petition. Sveum
v. Smith, 403 F.3d 447, 448 (7th Cir. 2005) (per
curiam); Jones v. Braxton, 392 F.3d 683, 688-89 (4th
Proceedings in Hawaii State Courts
April 24, 2000, a jury returned a verdict in Hawaii State
Court, finding Petitioner Calvin D. Elizares guilty on a
number of counts including Attempted Murder in the First
Degree, Kidnapping, and Terroristic Threatenning in the First
Degree. State v. Elizares, 54 P.3d 946 (Haw. Ct.
28, 2000, Petitioner was sentenced to life imprisonment
without parole as to the conviction for Attempted Murder and
received sentences from 5 years to 20 years imprisonment for
the remaining convictions. (State Court Judgment, attached as
Ex. W to Resp. Answer, ECF No. 15-26, Civ. No. 06-00465
September 13, 2002, the Hawaii Intermediate Court of Appeals
affirmed Petitioner's convictions and the Hawaii Supreme
Court subsequently dismissed his application for writ of