Opinion
Case No. 17-cv-2260-BAS-BLM
01-11-2018
TOMMY MCGUIRE, Petitioner, v. JULIE JONES, Respondent.
ORDER DENYING CERTIFICATE OF APPEALABILITY
[ECF No. 13]
On November 9, 2017, this Court dismissed Petitioner Tommy McGuire's Petition for a Writ of Habeas Corpus with prejudice for lack of jurisdiction. (ECF No. 3.) The Court also denied Petitioner's motion to reconsider that dismissal. (ECF No. 7.) Although the Court did not grant or deny a certificate of appealability, Petitioner subsequently appealed both denials to the Ninth Circuit. (ECF No. 8.) The Ninth Circuit has remanded the case to this Court for limited issue of whether to grant or deny a certificate of appealability to Petitioner. (ECF No. 13.) The Court denies Petitioner a certificate.
Pursuant to Rule 11 of the Rules following 28 U.S.C. §2254, a district court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A habeas petitioner may not appeal the denial of a habeas petition concerning detention arising from state court proceedings unless he obtains a certificate of appealability from a district or circuit court judge. 28 U.S.C. §2253(c)(1)(A); see also United States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997). The district court may issue a certificate of appealability if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. §2253(c)(2). To meet this threshold showing, a petitioner must show that: (1) the issues are debatable among jurists of reason, (2) that a court could resolve the issues in a different manner, or (3) that the questions are adequate to deserve encouragement to proceed further. Maciel v. Gate, 731 F.3d 928, 932 (9th Cir. 2013). Based on a review of the record Petitioner submitted to this Court (ECF No. 1) and the express jurisdictional limitations of 28 U.S.C. §2241(a) ("Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions") (emphasis added), the Court finds that jurists of reason could not find debatable whether this Court was correct in dismissing the Petition for lack of jurisdiction and denying reconsideration of dismissal.
Based on the foregoing, it is HEREBY ORDERED that Petitioner is DENIED a certificate of appealability as to dismissal of the Petition with prejudice (ECF No. 3) and denial of reconsideration of dismissal (ECF No. 7).
IT IS SO ORDERED. DATED: January 11, 2018
/s/ _________
Hon. Cynthia Bashant
United States District Judge