FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CLINTON T. ELDRIDGE, No. 21-15616 Petitioner-Appellant, D.C. No. v. 4:21-cv-00081- RCC-LAB CATRICIA HOWARD; PATRICIA K. CUSHWA, Acting Chairman of the U.S. Parole Commission, OPINION Respondents-Appellees. Appeal from the United States District Court for the District of Arizona Raner C. Collins, District Judge, Presiding Argued and Submitted December 5, 2022 Phoenix, Arizona Filed June 2, 2023 Before: Kim McLane Wardlaw and Patrick J. Bumatay, Circuit Judges, and Karen E. Schreier,* District Judge. Opinion by Judge Schreier; Dissent by Judge Bumatay * The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota, sitting by designation. 2 ELDRIDGE V. HOWARD SUMMARY** Habeas Corpus The panel reversed the district court’s judgment dismissing Clinton Eldridge’s amended habeas corpus petition, which the district court construed as brought under 28 U.S.C. § 2241, and remanded to the district court to decide the petition on the merits. Eldridge filed the instant habeas petition in the District Court for the District of Columbia in February 2020. In the amended petition, Eldridge challenges, among other things, the United States Parole Commission’s 2019 decision to issue a three-year “set-off,” the time he must wait until his next parole hearing. The District Court for the District of Columbia transferred the case to the District of Arizona, where Eldridge was incarcerated. That court dismissed Eldridge’s petition as an impermissible second or successive petition under the Antiterrorism and Effective Death Penalty Act, and denied Eldridge’s motion to reconsider. Relying on the abuse of the writ doctrine, the district court concluded that Eldridge’s claims were substantially similar to the claims he raised in at least two other § 2241 petitions. The panel held that Eldridge need not obtain a certificate of appealability (COA) to appeal the denial of the instant petition because Congress did not define or include the District of Columbia Superior Court as a “State court” in 28 U.S.C. § 2253(c), where it had expressly done so in that and other statutes. The panel held that § 2253(c)(1)(A)’s ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ELDRIDGE V. HOWARD 3 language, “in which the detention complained of arises out of process issued by a State court,” does not include the District of Columbia Superior Court. Prisoners whose detention arises out of process issued by a District of Columbia court are not required to obtain a COA to appeal the denial of habeas relief; thus, the COA jurisdictional requirement does not pose a barrier to Eldridge’s appeal. The panel further held that the district court erred in dismissing the petition as an abuse of the writ when Eldridge could not have possibly raised the same claims in prior petitions. Looking to the substance of Eldridge’s claim— that the Parole Commission acted arbitrarily and capriciously in 2019 when it issued a three-year set-off—the panel concluded that Eldridge did not have a fair …
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