Brown v. Schuyler

Background

Gregory L. Brown filed a pro se petition under 28 U.S.C. § 2254. On May 6, 2021, the court dismissed the petition as a second or successive petition because it found that Brown had not obtained authorization from the U.S. Court of Appeals for the Ninth Circuit to file it. Brown appealed and requested a certificate of appealability, appointment of counsel, and permission to proceed without paying appeal fees.

The Ninth Circuit remanded the case to the district court for the limited purpose of deciding whether to grant or deny a certificate of appealability. A certificate of appealability is required before a petitioner may appeal a final order in a federal habeas case. When a case was dismissed on a procedural ground without reaching the underlying constitutional claim, the certificate question includes whether reasonable judges could debate both the underlying constitutional claim and the procedural ruling.

Court’s analysis

The court reconsidered whether it had correctly characterized Brown’s petition as challenging the same conviction and sentence involved in his earlier case. The court stated that Brown was instead alleging ineffective assistance of counsel based on his court-appointed trial counsel’s actions concerning a motion or petition for resentencing under California Penal Code § 1170.95. Because reasonable judges could debate whether the court had correctly identified the conviction and sentence at issue, the court granted the request for a certificate of appealability.

In a footnote, the court also discussed an earlier related proceeding, No. 20-cv-3405 YGR (PR). The court stated that proceeding had likewise been dismissed as a second or successive petition, but that Brown’s claims there concerned a state court’s denial of a state petition after finding that amendments to California Penal Code §§ 188 and 189 did not affect his convictions. The court further stated that the earlier proceeding appeared not to have been exhausted because Brown had not presented his claims to the state appellate and supreme courts when he filed it. The court said dismissal of that proceeding still appeared appropriate, but that a certificate of appealability should have been granted because reasonable judges could debate whether the court had correctly found that Brown was challenging the same conviction and sentence.

Rulings

Judge Yvonne Gonzalez Rogers granted Brown’s motion for a certificate of appealability. The court denied Brown’s motion for appointment of counsel without prejudice to renewing it in the court of appeals. The court granted Brown’s request for permission to proceed without paying appeal fees and ordered the Clerk to process the notice of appeal. This order addressed the appeal-related requests and did not decide the merits of Brown’s ineffective-assistance allegations.