Olic v. Lizaraga

Filing 71

ORDER signed by District Judge Kimberly J. Mueller on 4/11/17 ORDERING that this Court DECLINES to issue a Certificate of Appealability re 70 USCA Order. And The Clerk of the Court is directed to serve a copy of this order on the United States Court of Appeals for the Ninth Circuit. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MILROD OLIC,

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No. 2:14-cv-2120 KJM GGH P
Petitioner,

v.

Court of Appeals Docket # 17-15543
ORDER

WARDEN JOE A. LIZARRAGA,
Respondent.

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Petitioner, a state prisoner proceeding pro se, filed this action seeking relief under

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28 U.S.C. § 2254. On March 7, 2017, this court dismissed the action without prejudice.

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Petitioner has appealed that decision, and the United States Court of Appeals for the Ninth Circuit

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has remanded this action to this court for the limited purpose of granting or denying a certificate

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of appealability for petitioner’s appeal.

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Rule 11 of the Rules Governing Section 2254 Cases in the United States District

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Courts, “[t]he district court must issue or deny a certificate of appealability when it enters a final

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order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. In the present context, the court

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should only issue a certificate of appealability if petitioner shows (1) “that jurists of reason would

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find it debatable whether the petitioner states a valid claim of the denial of a constitutional right”

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and (2) “that jurists of reason would find it debatable whether the . . . court was correct in its

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procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar

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is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist
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could not conclude either that the district court erred in dismissing the petition or that the

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petitioner should be allowed to proceed further.” Id.

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The instant action was dismissed without prejudice on the ground that Nettles v.

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Grounds, 830 F.3d 922 (9th Cir. 2015) (en banc) bars consideration of petitioner’s claims as

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habeas corpus claims, and petitioner declined to elect to proceed with this action as a civil rights

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action under 42 U.S.C. § 1983. See ECF No. 63 at 2; ECF No. 65. Petitioner has not shown it is

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debatable whether this court abused its discretion in finding petitioner’s claims not cognizable in

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habeas corpus proceedings. For that reason, this court declines to issue a certificate of

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appealability.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. This court declines to issue a certificate of appealability; and

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2. The Clerk of the Court is directed to serve a copy of this order on the United States

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Court of Appeals for the Ninth Circuit.
DATED: April 11, 2017

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UNITED STATES DISTRICT JUDGE

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