Malohi v. Zuniga

Full title: HALI MALOHI, Petitioner, v. RAFAEL ZUNIGA, Respondents.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Mar 27, 2015

2:14-cv-1459 KJN P (E.D. Cal. Mar. 27, 2015)

Opinion

HALI MALOHI, Petitioner, v. RAFAEL ZUNIGA, Respondents. No. 2:14-cv-1459 KJN P United States District Court, E.D. California. March 27, 2015

          ORDER

          KENDALL J. NEWMAN, Magistrate Judge.

         Petitioner is a federal prisoner, proceeding without counsel, with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The parties have consented to the jurisdiction of the undersigned. (ECF Nos. 4, 8.)

         On January 22, 2015, the undersigned granted respondent's motion to dismiss on grounds that the court lacked jurisdiction. (ECF No. 11.)

         In the instant order, the undersigned considers whether a certificate of appealability should issue. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3).

         As discussed in the January 22, 2015 order, this action is a motion to vacate sentence under 28 U.S.C. § 2255, and not a habeas petition under 28 U.S.C. § 2241. Thus, the court lacks jurisdiction to consider petitioner's Section 2255 motion. For these reasons, the undersigned finds that petitioner has not made a substantial showing of the denial of a constitutional right and declines to issue a certificate of appealability.

         Accordingly, IT IS HEREBY ORDERED that:

         1. A certificate of appealability is not issued;

         2. The Clerk of the Court is directed to serve this order on the Ninth Circuit Court of Appeals.