Olic v. Lizaraga
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)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:14-cv-2120 KJM GGH P
Court of Appeals Docket # 17-15543
WARDEN JOE A. LIZARRAGA,
Petitioner, a state prisoner proceeding pro se, filed this action seeking relief under
28 U.S.C. § 2254. On March 7, 2017, this court dismissed the action without prejudice.
Petitioner has appealed that decision, and the United States Court of Appeals for the Ninth Circuit
has remanded this action to this court for the limited purpose of granting or denying a certificate
of appealability for petitioner’s appeal.
Rule 11 of the Rules Governing Section 2254 Cases in the United States District
Courts, “[t]he district court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. In the present context, the court
should only issue a certificate of appealability if petitioner shows (1) “that jurists of reason would
find it debatable whether the petitioner states a valid claim of the denial of a constitutional right”
and (2) “that jurists of reason would find it debatable whether the . . . court was correct in its
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar
is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist
could not conclude either that the district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.” Id.
The instant action was dismissed without prejudice on the ground that Nettles v.
Grounds, 830 F.3d 922 (9th Cir. 2015) (en banc) bars consideration of petitioner’s claims as
habeas corpus claims, and petitioner declined to elect to proceed with this action as a civil rights
action under 42 U.S.C. § 1983. See ECF No. 63 at 2; ECF No. 65. Petitioner has not shown it is
debatable whether this court abused its discretion in finding petitioner’s claims not cognizable in
habeas corpus proceedings. For that reason, this court declines to issue a certificate of
In accordance with the above, IT IS HEREBY ORDERED that:
1. This court declines to issue a certificate of appealability; and
2. 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.
DATED: April 11, 2017
UNITED STATES DISTRICT JUDGE
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