Chavez v. Warden

Filing 23

ORDER DISMISSING HABEAS ACTION and ORDER DECLINING to Issue a Certificate of Appealability signed by District Judge Dale A. Drozd on 5/7/2019. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES D. CHAVEZ,

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No. 1:17-cv-01202-DAD-EPG (HC)

Petitioner,
v.

ORDER DISMISSING HABEAS ACTION,
DIRECTING CLERK OF COURT TO CLOSE
CASE, AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY

WARDEN,
Respondent.

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On September 7, 2017, petitioner filed a federal habeas petition challenging a prison rules

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violation report brought against him for fighting. (Doc. No. 1.) On October 23, 2018, the court

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granted respondent’s motion to dismiss the petition and ordered petitioner to notify the court

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whether he wished to convert the instant habeas proceeding to a civil rights action pursuant to 42

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U.S.C. § 1983 or to voluntarily dismiss the instant habeas proceeding without prejudice to refiling

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his clams in a new § 1983 action. (Doc. No. 20.)

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On November 19, 2018, petitioner notified the court that he wished to convert this habeas

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proceeding to a § 1983 civil rights action. (Doc. No. 21.) On November 26, 2018, petitioner was

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granted sixty days in which to assert claims he wished to bring under § 1983. (Doc. No. 22.) To

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date, however, no § 1983 complaint has been filed by petitioner and the time for doing so has

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passed. Accordingly, the court will dismiss the instant habeas action without prejudice to

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petitioner’s pursuit of his claims in a civil rights action brought pursuant to 42 U.S.C. § 1983.
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Finally, having found that petitioner is not entitled to habeas relief, the court now turns to

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whether a certificate of appealability should issue. A state prisoner seeking a writ of habeas

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corpus has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal

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is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); 28

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U.S.C. § 2253. Where, as here, the court denies habeas relief on procedural grounds without

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reaching the underlying constitutional claims, the court should issue a certificate of appealability

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“if jurists of reason would find it debatable whether the petition states a valid claim of the denial

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of a constitutional right and that jurists of reason would find it debatable whether the district court

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was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a

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plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a

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reasonable jurist could not conclude either that the district court erred in dismissing the petition or

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that the petitioner should be allowed to proceed further.” Id. In the present case, the court finds

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that reasonable jurists would not find the court’s determination that the petition should be

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dismissed debatable or wrong, or that petitioner should be allowed to proceed further. Therefore,

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the court declines to issue a certificate of appealability.

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Accordingly:

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1. The instant habeas action is dismissed without prejudice to petitioner refiling his

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claims in a civil rights action brought under 42 U.S.C. § 1983;

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2. The Clerk of the Court is directed to close this 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:

May 7, 2019
UNITED STATES DISTRICT JUDGE

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