Perales v. U.S. Internal Revenue Serv.

Full title: AZAEL DYTHIAN PERALES, Petitioner, v. U.S. INTERNAL REVENUE SERVICE, et…

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Aug 23, 2011

1:11-CV-01351 GSA HC (E.D. Cal. Aug. 23, 2011)

Opinion

1:11-CV-01351 GSA HC

08-23-2011

AZAEL DYTHIAN PERALES, Petitioner, v. U.S. INTERNAL REVENUE SERVICE, et al., Respondent.

Gary S. Austin

ORDER DISMISSING PETITION FOR WRIT

OF HABEAS CORPUS

ORDER DIRECTING CLERK OF COURT

TO ENTER JUDGMENT AND CLOSE CASE

ORDER DECLINING ISSUANCE OF

CERTIFICATE OF APPEALABILITY

Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. He has consented to the jurisdiction of the magistrate judge pursuant to 28 U.S.C. § 636(c).

On August 15, 2011, Petitioner filed the instant petition for writ of habeas corpus. The petition is nonsensical. He complains of violations of numerous United States Code sections by hundreds of respondents including heads of state, government entities, legislators, judges, restaurant and company executives, even priests. Although the petition is difficult to decipher, it is clear that no relief is available in this Court.

A federal court may only grant a petition for writ of habeas corpus if the federal petitioner can demonstrate that he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(a), (c)(3). In this case, Petitioner is not incarcerated, but is apparently a homeless person in Fullerton, California. Petitioner is not entitled to habeas corpus relief in this Court.

Certificate of Appealability

A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:

(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings.
(c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.

(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).

If a court denies a petitioner's petition, the court may only issue a certificate of appealability "if jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case, he must demonstrate "something more than the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 537 U.S. at 338.

In the present case, the Court finds that reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to proceed further. Petitioner has not made the required substantial showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a certificate of appealability.

ORDER

Accordingly, IT IS HEREBY ORDERED:

1) The petition is DISMISSED for failure to state a cognizable claim for relief;
2) The Clerk of Court is DIRECTED to enter judgment and close the case; and
3) The Court DECLINES to issue a certificate of appealability.

IT IS SO ORDERED.

Gary S. Austin

UNITED STATES MAGISTRATE JUDGE