Truschke v. Shasta County Superior Court, et al

Filing 23

ORDER signed by Magistrate Judge Carolyn K. Delaney on 8/10/2015 DECLINING to issue a certificate of appealability pursuant to 28 U.S.C. § 2253; and the Clerk shall DISREGARD petitioner's 16 , 18 motions as this action was closed on 6/24/2015. (cc: Ninth Circuit) (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES E. TRUSCHKE, JR.,

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Petitioner,

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v.

No. 2:15-cv-0702 CKD P

ORDER

SHASTA COUNTY SUPERIOR COURT,
et al.,
Respondents.

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Petitioner, a state prisoner proceeding pro se, has appealed the June 24, 2015 dismissal of

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his petition for untimeliness. As the order of dismissal did not address whether a certificate of

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appealability should issue, the court does so here.1
A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has

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made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

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Where the petition was dismissed on procedural grounds, a certificate of appealability “should

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issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the

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district court was correct in its procedural ruling’; and (2) ‘that jurists of reason would find it

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debatable whether the petition states a valid claim of the denial of a constitutional right.’” Morris

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Petitioner has consented to this court’s jurisdiction to conduct all proceedings in this action.
(ECF No. 6.)
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v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484

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(2000)).

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After review of the record herein, this court finds that petitioner has not satisfied the

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requirement for issuance of a certificate of appealability in this case. Accordingly, a certificate of

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appealability will not issue in this action.

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After the judgment of dismissal was entered on June 24, 2015, petitioner filed two

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motions. (ECF No. 16 & 18.) As this case is closed, the Clerk of Court will be directed to

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disregard these motions, and no orders will issue in response to future filings.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The court declines to issue a certificate of appealability pursuant to 28 U.S.C. § 2253;
and
2. The Clerk of Court is directed to disregard petitioner’s motions at ECF Nos. 16 & 18,

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as this action was closed on June 24, 2015.

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Dated: August 10, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2 / cudg0691.coa.pro

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