Thomas v. Cate

Filing 8

ORDER denying 6 Motion and Declining to Issue Certificate of Appealability; denying 7 Motion for Appointment of Counsel on Appeal. Signed by Judge Michael M. Anello on 5/8/2013. (Order electronically transmitted to US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KEITH THOMAS,

CASE NO. 13cv863-MMA (WVG)

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Petitioner,

ORDER DENYING MOTION AND
DECLINING TO ISSUE
CERTIFICATE OF APPEALABILITY;

vs.

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[Doc. No. 6]

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DENYING MOTION FOR
APPOINTMENT OF COUNSEL ON
APPEAL

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MATTHEW CATE, Secretary,
Respondent.

[Doc. No. 7]

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On April 11, 2013, the Court dismissed Petitioner’s Petition for Writ of Habeas Corpus for

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lack of jurisdiction. [See Doc. No. 3.] Now, Petitioner requests a certificate of appealability and

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the appointment of counsel on appeal. [Doc. Nos. 6-7.] The Court declines to issue a certificate of

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appealability, and denies Petitioner’s request for appointment of counsel.

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CERTIFICATE OF APPEALABILITY
“The district court must issue or deny a certificate of appealability when it enters a final

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order adverse to the applicant.” Rule 11 foll. 28 U.S.C. § 2254. A petitioner may not seek an

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appeal of a claim arising out of a state court detention unless the petitioner first obtains a

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certificate of appealability from a district judge or circuit judge under 28 U.S.C. § 2253. Fed. R.

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App. P. 22(b). When a petition is, as here, dismissed on procedural grounds, a certificate of
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13cv863

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appealability should be granted only if two elements are satisfied: (1) “jurists of reason would find

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it debatable whether the petition states a valid claim of the denial of a constitutional right”; and (2)

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“jurists of reason would find it debatable whether the district court was correct in its procedural

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ruling.” Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). As each of these components is a

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“threshold inquiry,” the federal court “may find that it can dispose of the application in a fair and

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prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the

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record and arguments.” Id. at 485.

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As the Court noted in its order dismissing this action, the Court lacks jurisdiction over this

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matter because neither Petitioner nor the inmates he seeks to proceed on behalf of are confined in

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the Southern District of California.1 See 28 U.S.C. § 2241(d); Braden v. 30th Judicial Circuit

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Court, 410 U.S. 484, 497 (1973). Petitioner has not shown that jurists of reason would find

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anything debatable in the procedural ruling that this Court lacks jurisdiction. Thus, the Court need

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not decide whether the application states a valid constitutional claim. See Slack, 529 U.S. at 485.

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Accordingly, the Court DENIES Petitioner’s motion and DECLINES to issue a certificate

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of appealability in this case. Further, the Court DENIES Petitioner’s motion for appointment of

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counsel on appeal.

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IT IS SO ORDERED.
DATED: May 8, 2013

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Hon. Michael M. Anello
United States District Judge

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The Court’s previous order, however, did provide Petitioner the opportunity to proceed in a
Court with proper jurisdiction.
13cv863
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