Nicholas v. Department of Corrections

Filing 17

ORDER by Judge Ronald M. Whyte Denying 14 Motion for Certificate of Appealability. (jg, COURT STAFF) (Filed on 3/18/2009)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Order Denying Certificate of Appealability P:\PRO-SE\SJ.Rmw\HC.08\Nicholas082coaden.wpd
*E-FILED - 3/18/09*

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION ISAAC NICHOLAS, Petitioner, vs. DEPARTMENT OF CORRECTIONS, et al., Respondents. ) ) ) ) ) ) ) ) ) ) ) No. C 08-4082 RMW (PR) ORDER DENYING CERTIFICATE OF APPEALABILTY

(Docket No. 14)

Petitioner, a California prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking enforcement of an injunction order from a separate case, and challenging (1) his out-of-state transfer while he suffers from a serious medical condition and (2) medical staff's deliberate indifference to his serious medical needs. The court noted that petitioner's claims were more appropriately addressed in a civil rights complaint pursuant to 42 U.S.C. § 1983 and dismissed the petition because it did not challenge the duration or legality of his confinement or sentence under § 2254. Petitioner has filed a motion for a certificate of appealability. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Upon the filing of a notice of appeal and a request for a certificate of appealability (COA), the district court shall indicate which specific issue or issues satisfy the standard for

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

issuing a certificate, or state its reasons why a certificate should not be granted. See United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997) (citing 28 U.S.C. § 2253(c)(3)). The court concludes that petitioner has not shown "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, petitioner's request for a certificate of appealability is DENIED. The clerk shall serve notice of this order forthwith to the United States Court of Appeal and to the parties. See Fed. R. App. P. 24(a). This order terminates docket no. 14. IT IS SO ORDERED. DATED:
3/16/09

RONALD M. WHYTE United States District Judge

Order Denying Certificate of Appealability P:\PRO-SE\SJ.Rmw\HC.08\Nicholas082coaden.wpd

2