Percy Bacon v. Howard Skolnik

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PERCY BACON,
Petitioner-Appellant,
v.
HOWARD SKOLNIK, et al.,
Respondents-Appellees.
No. 14-15947
D.C. No: 2:07-cv-0821-KJD-RJJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted December 16, 2016
San Francisco, California
Before: HAWKINS, BERZON, and MURGUIA, Circuit Judges.
Petitioner-Appellant Percy Bacon filed several motions before the district court,
seeking to reopen his closed habeas proceeding. On March 31, 2014, the district court
denied Bacon’s motions to reopen, and ordered Bacon to show cause why sanctions
FILED
DEC 23 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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should not be imposed. On April 15, 2014, the district court imposed sanctions on
Bacon. We affirm both orders.
1. We construe Bacon’s notice of appeal from the March 31 order as an
application for a certificate of appealability (“COA”). See Jones v. Ryan, 733 F.3d
825, 832 n.3 (9th Cir. 2013). Bacon’s attempt to reopen his case, based on Martinez
v. Ryan, 132 S. Ct. 1309, 1315 (2012), raises a new “claim” subject to statutory
restrictions on the filing of second or successive habeas petitions. Jones, 733 F.3d at
834, 836-37; see 28 U.S.C. § 2253(c)(1), (c)(1)(A). “Martinez did not decide a new
rule of constitutional law,” and for this reason “cannot underpin a second or
successive habeas corpus petition.” Jones, 733 F.3d. at 843. The panel cannot grant
a COA on these facts. Without a COA, we must dismiss the appeal of the March 31
order for lack of jurisdiction. See Gonzalez v. Thaler, 132 S. Ct. 641, 649 (2012).
2. There is no valid notice of appeal on the issue of sanctions. We cannot hear
an appeal from the March 31 order to show cause because the order to show cause was
interlocutory. See, e.g., Stanley v. Woodford, 449 F.3d 1060, 1065 (9th Cir. 2006)
(finding court lacked jurisdiction to hear interlocutory appeal). We cannot hear an
appeal from the April 15 order because Bacon’s appeal, mailed on April 9, 2014, did
not mention that order and, as applied to that order, was premature. See Burnside v.
Jacquez, 731 F.3d 874, 875 (9th Cir. 2013) (concluding that the date of a prisoner
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filing is when the prisoner conveys the filing to prison officials). None of Bacon’s
other filings can be construed as a proper notice of appeal. See id. at 876. Absent a
valid notice of appeal, the court lacks jurisdiction. See Bowles v. Russell, 551 U.S.
205, 214 (2007).
AFFIRMED.
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