No. 22-6792

Gary D. Swierski v. Craig Koenig, Acting Warden

Lower Court: Ninth Circuit
Docketed: 2023-02-15
Status: Denied
Type: IFP
Response WaivedIFP
Tags: 2nd-amendment certificate-of-appealability civil-procedure civil-rights due-process habeas-corpus judicial-review order-to-show-cause reasonably-debatable second-amendment standing
Latest Conference: 2023-03-17
Question Presented (from Petition)

(1) When the Northern District Court issued an "ORDER TO SHOW CAUSE" in this Petitioner's (S.A.P.') Second Amendment Petition, is that indicative that jurist of reason would find the claim[s] reasonably debatable and C.O.A. should issue? (Buck v, Davis (2017) 137 S.Ct. 759) See "ORDER TO SHOW CAUSE" (on Page 3 of 4, Line 7) states: Liberally construed, the claims appear arguably cognizable under §2254 and merit an answer from Respondent; seeAppendix £ for copy of Order to Show Cause. Petitioner requests this Court take judicial notice of all records. When the Northern District Court denied C.O.A. on all of Petitioner's claims, / Petitioned filed "Request for the Issuance of a Certificate of Appealability" in the Ninth Circuit Court of Appeals, and the 9th Circuit also denied C.O.A. all claims. Petitioner then requested in 9th Circuit, "Request for Rehearing En Banc" and "Evidentiary Hearing" to flush out the truth in the claims, Peti tioner never had evidentiary hearing. Both were denied. "The standard for gran ting COA is low," Frost v. Gilbert (9th Cir.2016) 835 F.3d 883,888. Petitioner believes that he and state appellate counsel,.both "made a sub stantial showing of the denial of a constitution right[s]," pursuant to Slack v. McDaniel (2000) 529 U.S. 473,484, whereby C.O.A. may issue from Order to Showon Cause. Pursuant to SCOTUS precedent in (Buck v. Davis (2017)), supra, the initial determination for whether a C.O.A. should be granted is simply "whether a claim is reasonably debatable, and if so, an appeal is the normal course, inquiry...is not coextensive with a merits analysis." Pursuant to SCOTUS precedent in Miller-El v. Cockrell (2003) 537 U.S. 322, 338, "[A] claim can be debatable even though every jurist of reason might agree, 'after' the C.O.A. has been granted and the case has .received full considera tion, that petitioenr will not prevail." Is this Petitioner incorrect to think that the issuing of an Order To Show Cause in this case means the Court found merit in the claims and therefore the claims are debatable and C.O.A. should have issued?

(2) Should Petitioner'sclaim of "Actual Innocence" and "Fac tual Innocence" of first-degree murder be adjudica £t^^hp fimerits since there is NO scientific cause of death determination? ; cause of death was based on alleged hearsay by prosecution main witness Eva Swierski, who is schizophrenic and has experienced auditory hallucinations, (see attached Appendix No. (3 regarding Eva) there is No confession,No eyewitness, No crime scene, No weapon evidence, No blood or DNA type evidence, No underlying felony, No evidence of the actual "alleged act?" This case does Not have substantial evidence which is reasonable, credible, and of solid valueto support this first degree murder conviction. See Second Amended Petition (S.A.P.). This

Question Presented (AI Summary)

Whether the district court's issuance of an 'ORDER TO SHOW CAUSE' indicates that the petitioner's Second Amendment claims are reasonably debatable and a certificate of appealability should be issued

Docket Entries

2023-03-20
Petition DENIED.
2023-02-23
DISTRIBUTED for Conference of 3/17/2023.
2023-02-16
Waiver of right of respondent Craig Koenig to respond filed.
2022-06-28
Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due March 17, 2023)

Attorneys

Craig Koenig
Gregory A. OttCalifornia Attorney General's Office, Respondent
Gary D. Swierski
Gary D. Swierski — Petitioner