Hughes v. Mariposa County Superior Court

Filing 6

ORDER DISMISSING PETITION for Writ of Habeas Corpus; ORDER DIRECTING Clerk of Court to Enter Judgment; and ORDER DECLINING Issuance of Certificate of Appealability, signed by Magistrate Judge Gary S. Austin on 9/7/2011. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BERNARD HUGHES,

1:11-CV-01299 GSA HC

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Petitioner,

ORDER DISMISSING PETITION FOR WRIT
OF HABEAS CORPUS

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v.
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ORDER DIRECTING CLERK OF COURT
TO ENTER JUDGMENT
MARIPOSA COUNTY SUPERIOR
COURT,

ORDER DECLINING ISSUANCE OF
CERTIFICATE OF APPEALABILITY

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Respondent.
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On August 5, 2011, Petitioner filed the instant petition for writ of habeas corpus in this
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Court. He has consented to the jurisdiction of the Magistrate Judge pursuant to 28 U.S.C. § 636(c).
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DISCUSSION
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Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary review
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of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears
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from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing
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2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.1990). 28 U.S.C. § 2254(a)
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states:
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The Supreme Court, a Justice thereof, a circuit judge, or a district court shall
entertain an application for a writ of habeas corpus in behalf of a person in
custody pursuant to a judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United States.

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(emphasis added). See also, Rule 1 to the Rules Governing Section 2254 Cases in the United States

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District Court. The Supreme Court has held that “the essence of habeas corpus is an attack by a

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person in custody upon the legality of that custody . . .” Preiser v. Rodriguez, 411 U.S. 475, 484

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(1973).

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In this case, Petitioner states he was convicted in the Mariposa County Superior Court and is

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currently pending appeal in the California Court of Appeal, Fifth Appellate District. He files the

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instant petition to request copies of his transcripts. The petition does not present cognizable claims

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for relief in that Petitioner is not challenging his conviction or the legality of his custody. Habeas

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corpus is not appropriate vehicle to obtain transcripts from the state courts. Petitioner is not entitled

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to habeas corpus relief, and this petition must be dismissed.

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Certificate of Appealability

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A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a

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district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller-

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El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue

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a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:

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(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.

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(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.

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(c)
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(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

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(B) the final order in a proceeding under section 2255.

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(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.

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(3) The certificate of appealability under paragraph (1) shall indicate which
specific issue or issues satisfy the showing required by paragraph (2).

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If a court denies a petitioner’s petition, the court may only issue a certificate of appealability

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“if jurists of reason could disagree with the district court’s resolution of his constitutional claims or

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that jurists could conclude the issues presented are adequate to deserve encouragement to proceed

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further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the

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petitioner is not required to prove the merits of his case, he must demonstrate “something more than

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the absence of frivolity or the existence of mere good faith on his . . . part.” Miller-El, 537 U.S. at

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338.

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In the present case, the Court finds that reasonable jurists would not find the Court’s

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determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or

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deserving of encouragement to proceed further. Petitioner has not made the required substantial

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showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a

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certificate of appealability.

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ORDER

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Accordingly, IT IS HEREBY ORDERED:

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1) The petition for writ of habeas corpus is DISMISSED;

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2) The Clerk of Court is DIRECTED to enter judgment and close the case; and

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3) The Court DECLINES to issue a certificate of appealability.

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IT IS SO ORDERED.
Dated:
6i0kij

September 7, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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