Harris v. Felker et al

Filing 24

ORDER denying 23 Motion for Certificate of Appealability. This Court finds that a certificate of appealability is not warranted in this instance because the dismissal of the petition under the circumstances here is not an issue debatable among juri sts of reason nor could any other court resolve the issue in a different manner. Accordingly, this Court DENIES a certificate of appealability in this case. Signed by Judge John A. Houston on 11/16/2009. (Order electronically transmitted to US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

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 MARK A. HARRIS, v. Petitioner, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) Civil No. 07CV2216 JAH (BLM) ORDER DENYING CERTIFICATE OF APPEALABILITY

TOMMY FELKER, Warden, et al., Respondents.

On November 19, 2007, Petitioner Mark Harris, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to the Honorable Barbara Major, United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)B) and Local Rule HC.2(a). On May 23, 2008, Respondent filed an answer to the petition and Petitioner filed a traverse on August 18, 2008. Judge Major issued a report and recommendation ("report") on August 21, 2008 denying the petition. Specifically, Judge Major found that the Court lacked jurisdiction to hear the petition. On September 11, 2008, Petitioner filed a general objection to the magistrates judge's findings and conclusions contained in the report. This Court subsequently overruled Petitioner's objection, adopted the report it its entirety and dismissed the petition for lack of jurisdiction. On November 4, 2009, Petitioner filed a "Notice of Appeal" and a "Request for Certificate of Appealability." See Doc. No. 22. A certificate of appealability is authorized "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To meet this
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threshold showing, a petitioner must show : (1) the issues are debatable among jurists of reason; or (2) that a court could resolve the issues in a different manner; or (3) that the questions are adequate to deserve encouragement to proceed further. Lambright v. Stewart, 220 F.3d 1022, 1024-25 (9th Cir. 2000)(citing Slack v. McDaniel, 529 U.S. 473 (2000) and Barefoot v. Estelle, 463 U.S. 880 (1983)). Here, Petitioner appeals this Court's order dismissing the petition for writ of habeas corpus for lack of jurisdiction. In overruling Petitioner's objections and dismissing the petition, this Court agreed with the magistrate judge's determination that the Court lacked jurisdiction to hear the petition. Specifically, the magistrate judge found that at the time of the petition, Petitioner was not in custody under the challenged sentence or conviction. Therefore, this Court adopted the magistrate judge's recommendation and dismissed the petition for lack of jurisdiction. This Court finds that a certificate of appealability is not warranted in this instance because the dismissal of the petition under the circumstances here is not an issue debatable among jurists of reason nor could any other court resolve the issue in a different manner. Lambright, 220 F.3d at 1024-25. appealability in this case. IT IS SO ORDERED. Accordingly, this Court DENIES a certificate of

DATED: November 16, 2009

JOHN A. HOUSTON United States District Judge

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