Full Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 6 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SHERILL LYNN SMOTHERS, No. 25-2161 D.C. No. Petitioner - Appellant, 3:24-cv-04784-RFL v. MEMORANDUM* ROB BONTA; CONTRA COSTA COUNTY SUPERIOR COURT, Respondents - Appellees. Appeal from the United States District Court for the Northern District of California Rita F. Lin, District Judge, Presiding Argued and Submitted October 23, 2026 San Francisco, California Before: FORREST and TUNG, Circuit Judges, and BASTIAN, District Judge.** Sherill Lynn Smothers appeals from the district court’s denial of his habeas corpus petition filed under 28 U.S.C. § 2241. We have jurisdiction to review the district court’s decision only if a certificate of appealability (COA) issues. 28 U.S.C. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stanley Allen Bastian, United States District Judge for the Eastern District of Washington, sitting by designation. § 2253(c)(1)(A); see also Gonzalez v. Thaler, 565 U.S. 134, 142 (2012). The district court or this court may issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Because issuance of a COA under § 2253(c)(1) is the only truly jurisdictional requirement, see Gonzalez, 565 U.S. at 142, we may vacate or expand an issued COA to remedy any defect. Phelps v. Alameda, 366 F.3d 722, 727–28 (9th Cir. 2004). If resolution of the certified question would provide no “effectual relief whatever” to the petitioner, the COA was improperly granted and we may vacate the COA and dismiss the appeal for lack of jurisdiction. Id. at 728, 730 (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). Here, the district court refused to issue a COA after denying Smothers’s habeas petition raising a Double Jeopardy challenge under the Fifth Amendment. Smothers sought a COA from this court, and a prior panel declined to certify the questions that he presented and instead certified a question that it formulated in the first instance: “[W]hether [Smothers] has raised a colorable Double Jeopardy claim in the context of Younger v. Harris, 401 U.S. 37 (1971), based on the argument that issue preclusion precludes the prosecution in [his] retrial from relitigating the allegation that [Smothers] was the actual killer.” This question does not present a constitutional issue and any answer given would not provide Smothers with “any effectual relief whatever” on the Double Jeopardy challenge that he unsuccessfully 2 25-2161 raised below. Accordingly, the COA was improperly issued. Because the district court’s ruling on Smothers’s Double Jeopardy challenge is not reasonably “debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), in light of governing precedent, including Santamaria v. v. Horsley, 133 F.3d 1242 (9th Cir. 1998) (en banc), amended, 138 F.3d 1280 (9th Cir. 1998), we decline to expand the COA because the district court and this court did not err in refusing to certify that issue. Certificate of appealability VACATED and appeal DISMISSED for lack of jurisdiction. 3 25-2161