Ellawendy v. Monterey County Superior Court

Background

Abdel Fatah Ellawendy, a state prisoner proceeding without a lawyer, filed a petition under 28 U.S.C. § 2254 challenging his conviction. On June 3, 2020, the court dismissed the action for failure to exhaust state judicial remedies, meaning that he had not completed the required state-court review before seeking federal relief.

The opinion states that this was Ellawendy’s second federal habeas petition filed in the district. When he filed it, he had appealed only to the state appellate court. A later-filed third habeas action indicated that he had subsequently sought review by the state’s highest court and had been denied relief. The court therefore stated that the matter would proceed under the more recently filed petition.

Appeal and ruling

Ellawendy appealed the dismissal. The Ninth Circuit remanded the matter for the limited purpose of deciding whether to grant or deny a certificate of appealability. A certificate of appealability is required to pursue an appeal from the denial of a federal habeas petition.

Judge Beth Labson Freeman denied a certificate of appealability. Applying the standard quoted from Slack v. McDaniel, the court found that reasonable judges would not debate whether the petition stated a valid constitutional claim or whether the district court correctly dismissed the petition on procedural grounds. The clerk was directed to send a copy of the order to the Ninth Circuit.