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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 MILROD OLIC, 11 12 13 14 No. 2:14-cv-2120 KJM GGH P Petitioner, v. Court of Appeals Docket # 17-15543 ORDER WARDEN JOE A. LIZARRAGA, Respondent. 15 16 Petitioner, a state prisoner proceeding pro se, filed this action seeking relief under 17 28 U.S.C. § 2254. On March 7, 2017, this court dismissed the action without prejudice. 18 Petitioner has appealed that decision, and the United States Court of Appeals for the Ninth Circuit 19 has remanded this action to this court for the limited purpose of granting or denying a certificate 20 of appealability for petitioner’s appeal. 21 Rule 11 of the Rules Governing Section 2254 Cases in the United States District 22 Courts, “[t]he district court must issue or deny a certificate of appealability when it enters a final 23 order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. In the present context, the court 24 should only issue a certificate of appealability if petitioner shows (1) “that jurists of reason would 25 find it debatable whether the petitioner states a valid claim of the denial of a constitutional right” 26 and (2) “that jurists of reason would find it debatable whether the . . . court was correct in its 27 procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar 28 is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 1 1 could not conclude either that the district court erred in dismissing the petition or that the 2 petitioner should be allowed to proceed further.” Id. 3 The instant action was dismissed without prejudice on the ground that Nettles v. 4 Grounds, 830 F.3d 922 (9th Cir. 2015) (en banc) bars consideration of petitioner’s claims as 5 habeas corpus claims, and petitioner declined to elect to proceed with this action as a civil rights 6 action under 42 U.S.C. § 1983. See ECF No. 63 at 2; ECF No. 65. Petitioner has not shown it is 7 debatable whether this court abused its discretion in finding petitioner’s claims not cognizable in 8 habeas corpus proceedings. For that reason, this court declines to issue a certificate of 9 appealability. 10 In accordance with the above, IT IS HEREBY ORDERED that: 11 1. This court declines to issue a certificate of appealability; and 12 2. The Clerk of the Court is directed to serve a copy of this order on the United States 13 14 Court of Appeals for the Ninth Circuit. DATED: April 11, 2017 15 16 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 2

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