Owens v. California Board of Prison Terms

Filing 6

ORDER signed by Magistrate Judge Craig M. Kellison on 6/10/2015 SUMMARILY DISMISSING this action; the court DECLINES to issue a certificate of appealability; 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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KIM L. OWENS,

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Petitioner,

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No. 2:14-cv-2610-CMK-P

vs.

ORDER

CALIFORNIA BOARD OF PRISON
TERMS,

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Respondent.
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/

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Petitioner, a state prisoner proceeding with counsel, brings this petition for a writ

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of 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.

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On April 30, 2015, the court issued petitioner an order to show cause, within 30

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days, why this case should not be summarily dismissed for failure to raise a federally cognizable

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claim. To date, no response to the order to show cause have been received.

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warned that failure to respond to the order to show cause may result in the dismissal of this

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action for the reasons outlined as well as for failure to prosecute and comply with court rules and

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orders. See Local Rule 110.

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Petitioner was

For the reasons outlined in the court’s April 30, 2015, order, the court finds it
appropriate to summarily dismiss this action for failure to raise a federally cognizable claim
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establishing petitioner is entitled to relief in this court, and for petitioner’s failure prosecute and

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comply with court rules and orders.

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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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This action is summarily dismissed;

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2.

The court declines to issue a certificate of appealability; and

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

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DATED: June 10, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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