Mills v. California Medical Facility

Filing 28

ORDER signed by District Judge John A. Mendez on 11/14/19 DECLINING to issue the certificate of appealability referenced in 28 U.S.C. § 2253. The Clerk of the Court is directed to serve this order on the Ninth Circuit Court of Appeals. (cc: USCA) (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH WAYNE MILLS,

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No. 2: 16-cv-2766 JAM KJN P

Petitioner,
v.

ORDER

CALIFORNIA MEDICAL FACILITY, et
al.,
Respondents.

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Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. On June 29, 2017, the court dismissed this action based on

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petitioner’s failure to exhaust state court remedies. (ECF No. 18.) On September 24, 2019, the

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court denied petitioner’s August 8, 2019 motion to reopen this action. (ECF No. 20.)

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On October 30, 2019, the Ninth Circuit Court of Appeals remanded this action to this

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court for the limited purpose of granting or denying a certificate of appealability regarding the

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September 24, 2019 order denying petitioner’s motion to reopen this action. (ECF No. 27.)

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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)(3). For

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the reasons stated in the May 3, 2017 findings and recommendations recommending that this

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action be dismissed based on petitioner’s failure to exhaust state court remedies, a certificate of

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appealability should not issue in this action.
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Accordingly, IT IS HEREBY ORDERED that:

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1. The court declines to issue the certificate of appealability referenced in 28 U.S.C. §

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2253.
2. The Clerk of the Court is directed to serve this order on the Ninth Circuit Court of
Appeals.

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DATED: November 14, 2019
/s/ John A. Mendez____________

_____

UNITED STATES DISTRICT COURT JUDGE

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