Richardson v. Johnson

Filing 11

ORDER signed by Magistrate Judge Craig M. Kellison on 10/12/2016 ORDERING petitioner's petition for writ of habeas corpus is SUMMARILY DISMISSED; all other pending motions are DENIED as moot; no certificate of appealability shall issue; and the Clerk shall close this case. CASE CLOSED.(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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ELLEN K. RICHARDSON,

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No. 2:14-cv-0244-CMK-P

Petitioner,

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vs.

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D.K. JOHNSON,

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ORDER

Respondent.
/
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to Magistrate Judge

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

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action. Pending before the court is petitioner’s petition for a writ of habeas corpus (Doc. 1).

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On February 24, 2016, the court issued petitioner an order to show cause why her

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petition for a writ of habeas corpus should not be summarily dismissed. Petitioner filed her

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response with a motion for summary judgment. While she requests the court grant her summary

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judgment, she fails to provided the court with any additional information which could be used to

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find this court has jurisdiction over her challenge to a restitution order. See Bailey v. Hill, 599

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F.3d 976, 980 (9th Cir. 2010). Petitioner has thus failed to show cause why her petition should
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not be dismissed.
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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1. Petitioner’s petition for a writ of habeas corpus is summarily dismissed;

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2. All other pending motions are denied as moot;

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3. No certificate of appealability shall issue; and

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

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DATED: October 12, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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