Johnson v. Swarthout

Filing 35

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/4/2012 ORDERING that the 34 motion for a certificate of appealability is DENIED without prejudice; and the clerk to assign this case a district judge. This case has been assigned to US District Judge Garland E. Burrell, Jr. and US Magistrate Judge Carolyn K. Delaney; the new case number is 2:11-cv-2719 GEB CKD (HC). (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAUL SAMUEL JOHNSON

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Petitioner,

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No. CIV S-11-2719 CKD

vs.
GARY SWARTHOUT

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Respondent.

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ORDER
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Petitioner is a state prisoner proceeding pro se with an application for writ of

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habeas corpus under 28 U.S.C. § 2254. He has filed a motion for a certificate of appealability. A

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certificate of appealability can only issue after a court has entered its final order in a habeas

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corpus proceeding and only if the party seeking the certificate makes a substantial showing of the

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denial of a constitutional right. See 28 U.S.C. § 2253(c). The motion is therefore premature.1

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The basis for the motion is vague. Petitioner claims that the judge in the Northern
District of California who ordered this case transferred to the Eastern District of California
mistakenly dismissed his case. It is not clear if petitioner is referring to another case to which he
was a party in the Northern District. If petitioner is referring to the action for habeas relief that
he originally filed in the Northern District and was assigned Civil Action No. 4:11-cv-04280, that
case has been transferred to this court and assigned the case number in the caption above. It has
not been dismissed.
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Accordingly, IT IS HEREBY ORDERED that:

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1. The motion for a certificate of appealability (Docket No. 34) is denied without

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prejudice to its renewal at the appropriate time.

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2. The Clerk of Court is directed to assign this case to a district judge.

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Dated: April 4, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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john2719.ord.

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