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Elizares v. Taylor

United States District Court, D. Hawaii

December 15, 2016

CALVIN D. ELIZARES Petitioner,
v.
JOSEPH TAYLOR, Respondent.

          ORDER DENYING PETITIONER CALVIN D. ELIZARES' APPLICATION FOR A CERTIFICATE OF APPEALABILITY (ECF NO. 7)

          Helen Gillmor, United States District Judge

         Petitioner 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 Proceeding.

         Petitioner's Application for a Certificate of Appealability (ECF No. 7) is DENIED.

         PROCEDURAL HISTORY

         On July 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. 1).

         On 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).

         The 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.)

         On November 29, 2016, Petitioner filed an APPLICATION FOR A CERTIFICATE OF APPEALABILITY. (ECF No. 7).

         REQUIREMENT FOR A CERTIFICATE OF APPEALABILITY

         Certificate of Appealability for the Denial of a Rule 60(b) Motion

         The 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 (2005).

         The 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. 1998).

         Certificate of Appealability for the Dismissal of an Unauthorized Second or Successive Habeas Petition

         There 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).

         The 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.

         Federal 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 Cir. 2004).

         ANALYSIS

         I. Background

         A. Proceedings in Hawaii State Courts

         On 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. App. 2002).

         On June 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 HG-BMK).

         On 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 ...


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