Tarnawa v. Babcock

Filing 8

ORDER signed by Magistrate Judge Dale A. Drozd on 04/22/13 ordering the court declines to issue a certificate of appealability in this action. (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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DONALD WILLIAM TARNAWA,

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Petitioner,
vs.
MICHAEL BABCOCK,
Respondent.

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No. 2:11-cv-02910 DAD P

ORDER
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Petitioner, a federal prisoner proceeding pro se, has filed a notice of appeal

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following this court’s February 7, 2013 dismissal of his petition for a writ of habeas corpus under

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to 28 U.S.C. § 2241 for lack of jurisdiction. The undersigned issued the order dismissing this

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action following petitioner’s consent to Magistrate Judge jurisdiction pursuant to 28 U.S.C. §

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636(c). See Doc. No. 3. Before petitioner can proceed with his appeal, a certificate of

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appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

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A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

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applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

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§ 2253(c)(2). The court must either issue a certificate of appealability indicating which issues

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satisfy the required showing or must state the reasons why such a certificate should not issue.

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Fed. R. App. P. 22(b).
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Where, as here, the petition was dismissed for lack of jurisdiction, a certificate of

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appealability “should issue if the prisoner shows, at least, that jurists of reason would find it

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debatable whether the petition states a valid claim of the denial of a constitutional right and that

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jurists of reason would find it debatable whether the district court was correct in its procedural

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ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). See also United States v. Zuno-Arce, 339

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F.3d 886 (9th Cir. 2003).

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After reviewing the entire record herein, this court finds that petitioner has not

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satisfied the first requirement for issuance of a certificate of appealability in this case.

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Specifically, in this court’s February 7, 2013, order it was concluded that this court lacked

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jurisdiction over petitioner’s application for relief under 28 U.S.C. § 2241 in which he sought to

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challenge a judgment and sentence of the United States District Court for the Eastern District of

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Texas where he still had a petition under 28 U.S.C. § 2255 pending. Petitioner has failed to

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show that jurists of reason would find this court’s conclusion that it lacked of jurisdiction over

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the § 2241 petition to be debatable.

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Accordingly, the court declines to issue a Certificate of Appealability (COA) in

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this action.

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DATED: April 22, 2013.

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DAD:4
tarn2910.coa

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