Schenck v. Spearman

Filing 11

ORDER DENYING CERTIFICATE OF APPEALABILITY AND DIRECTING CLERK TO FORWARD THE RECORD TO THE NINTH CIRCUIT. Signed by Judge Claudia Wilken on 7/29/2013. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 7/29/2013)

IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RYKER WILLIAM SCHENCK,
Petitioner,

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Case Nos.: 12-6396 CW (PR)
13-0384 CW (PR)

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v.

Ninth Circuit Case No: 13-15800

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MARIN SUPERIOR COURT, et al.,

ORDER DENYING CERTIFICATE OF
APPEALABILITY AND DIRECTING
CLERK TO FORWARD THE RECORD TO
THE NINTH CIRCUIT

Respondents.

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Petitioner, a state prisoner proceeding pro se, filed these
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United States District Court
For the Northern District of California

two cases as habeas corpus petitions.

By order filed March 19,

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2013, the Court reviewed the cases and found that they appeared to
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be identical and both contained habeas and civil rights claims.
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Docket no. 6.

The Court found that none of the claims raised were

cognizable, dismissed the cases without prejudice and entered

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judgment.

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appeal in both cases.

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Ninth Circuit has combined the appeals and referred the matter

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back to this Court for a determination whether a certificate of

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appealability (COA) should issue in these appeals, which arise in

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part under 28 U.S.C. § 2254.

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Id. & Docket no. 7.

Petitioner has filed a notice of

The United States Court of Appeals for the

This Court dismissed Petitioner’s habeas claims for the
following reasons:
It is clear from the face of the petition that
Schenck’s habeas claim for early release from state
custody because of the alleged miscalculation of custody
credits has not been exhausted by presentation of the
claim to the California Supreme Court. Accordingly, the
claim is DISMISSED without prejudice. See Rose v.
Lundy, 455 U.S. 509, 515 (1982). Further, Schenck’s
request that the Court notify him of any outstanding
federal criminal charges and bring him to trial on such
charges is not properly before this Court. Any such
request must be made in accordance with the requirements

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of the Interstate Agreement on Detainers Act, 18 U.S.C.
App. II.
Docket no. 6 at 2:3-13.
“Determining whether a COA should issue where the petition
was dismissed on procedural grounds has two components, one

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directed at the underlying constitutional claims and one directed

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at the district court’s procedural holding.”

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529 U.S. 473, 484-85 (2000).

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habeas petition on procedural grounds without reaching the

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prisoner’s underlying constitutional claim, a COA should issue

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United States District Court
For the Northern District of California

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when the prisoner shows, at least, that jurists of reason would

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find it debatable whether the petition states a valid claim of the

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Slack v. McDaniel,

“When the district court denies a

denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its
procedural ruling.”

Id. at 484.

As each of these components is a

“threshold inquiry,” the federal court “may find that it can
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dispose of the application in a fair and prompt manner if it
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proceeds first to resolve the issue whose answer is more apparent
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from the record and arguments.”
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Id. at 485.

For the reasons discussed above, Petitioner has not shown
that jurists of reason would find it debatable whether the Court

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is correct in its procedural ruling that these petitions are

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subject to dismissal.

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Accordingly, a COA is DENIED.

The Clerk of the Court shall forward a copy of this Order to

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the Ninth Circuit together with the record.

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Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997).

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See United States v.

IT IS SO ORDERED.
Dated:

7/29/2013

________________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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