McGee v. Attorney General of the State of California

Filing 9

ORDER signed by Magistrate Judge Craig M. Kellison on 04/23/14 ordering this action is dismissed. The court declines to issue a certificate of appealability. The clerk of the court is directedt to close the case. CASE CLOSED. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEFFERSON ARNOLD McGEE,

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No. 2:11-cv-2554-CMK-P

Petitioner,
vs.

ORDER

ATTORNEY GENERAL OF THE
STATE OF CALIFORNIA,

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Respondent.
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/

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Petitioner, who does not appear to be a state prisoner, brings this pro se petition

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for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to Magistrate

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Judge jurisdiction pursuant to 28 U.S.C. § 636(c) and no other party has been served or appeared

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in the action.

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The court issued petitioner an order to show cause why this case should not be

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dismissed for lack of jurisdiction. The court informed petitioner that this court only has

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jurisdiction to hear a 28 U.S.C. § 2254 petition if the petitioner is in state custody and if he

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alleges he is in custody in violation of federal law, or the length of his sentence violates federal

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law. Petitioner is no longer in custody, nor does it appear that he is on probation or parole.

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Thus, he fails to meet the “in custody” requirement of 28 U.S.C. § 2254.
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Petitioner has filed a response to the order to show cause. In his response,

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petitioner states that he served respondent with a copy of his petition, and respondent failed to

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file a responsive pleading objecting to his petition. He disputes the court’s determination that he

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fails to meet the “in custody” requirement, thus divesting this court of jurisdiction, on the basis

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that the respondent has not objected to his petition.

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Rule 4 of the Federal Rules Governing Section 2254 Cases requires the court to

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review any petitions filed to determine if it plainly appears from the petition and any attached

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exhibits that petitioner is not entitled to relief. If the court determines that it does not plainly

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appear that petitioner is not entitled to relief, the respondent is then directed to file a response to

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petitioner’s petition. See id. The respondent is not obligated to file a response until the court so

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orders. See id. Thus, the fact that respondent has not objected to petitioner’s filings has no

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effect on the court’s jurisdiction.

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As stated in the court’s prior order, petitioner has not presented the court with any

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further information to render the determination that he fails meets the “in custody” requirements

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of 28 U.S.C. § 2254 erroneous. The undersigned therefore finds this case must be dismissed.

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See Maleng v. Cook, 490 U.S. 488, 490-91 (1989).

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Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the

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court has considered whether to issue a certificate of appealability. Before petitioner can appeal

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this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P.

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22(b). Where the petition is denied on the merits, a certificate of appealability may issue under

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28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a

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constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of

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appealability indicating which issues satisfy the required showing or must state the reasons why

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such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed

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on procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1)

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‘that jurists of reason would find it debatable whether the district court was correct in its
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procedural ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition

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states a valid claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775,

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780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000)).

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For the reasons stated above, the court finds that issuance of a certificate of appealability is not

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warranted in this case.

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Accordingly, IT IS HEREBY ORDERED that:

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This action is dismissed;

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The court declines to issue a certificate of appealability; and

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The Clerk of the Court is directed to close this case.

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DATED: April 23, 2014
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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