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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEITH THOMAS, CASE NO. 13cv863-MMA (WVG) 12 13 Petitioner, ORDER DENYING MOTION AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY; vs. 14 [Doc. No. 6] 15 DENYING MOTION FOR APPOINTMENT OF COUNSEL ON APPEAL 16 17 MATTHEW CATE, Secretary, Respondent. [Doc. No. 7] 18 19 On April 11, 2013, the Court dismissed Petitioner’s Petition for Writ of Habeas Corpus for 20 lack of jurisdiction. [See Doc. No. 3.] Now, Petitioner requests a certificate of appealability and 21 the appointment of counsel on appeal. [Doc. Nos. 6-7.] The Court declines to issue a certificate of 22 appealability, and denies Petitioner’s request for appointment of counsel. 23 24 CERTIFICATE OF APPEALABILITY “The district court must issue or deny a certificate of appealability when it enters a final 25 order adverse to the applicant.” Rule 11 foll. 28 U.S.C. § 2254. A petitioner may not seek an 26 appeal of a claim arising out of a state court detention unless the petitioner first obtains a 27 certificate of appealability from a district judge or circuit judge under 28 U.S.C. § 2253. Fed. R. 28 App. P. 22(b). When a petition is, as here, dismissed on procedural grounds, a certificate of -1- 13cv863 1 appealability should be granted only if two elements are satisfied: (1) “jurists of reason would find 2 it debatable whether the petition states a valid claim of the denial of a constitutional right”; and (2) 3 “jurists of reason would find it debatable whether the district court was correct in its procedural 4 ruling.” Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). As each of these components is a 5 “threshold inquiry,” the federal court “may find that it can dispose of the application in a fair and 6 prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the 7 record and arguments.” Id. at 485. 8 As the Court noted in its order dismissing this action, the Court lacks jurisdiction over this 9 matter because neither Petitioner nor the inmates he seeks to proceed on behalf of are confined in 10 the Southern District of California.1 See 28 U.S.C. § 2241(d); Braden v. 30th Judicial Circuit 11 Court, 410 U.S. 484, 497 (1973). Petitioner has not shown that jurists of reason would find 12 anything debatable in the procedural ruling that this Court lacks jurisdiction. Thus, the Court need 13 not decide whether the application states a valid constitutional claim. See Slack, 529 U.S. at 485. 14 Accordingly, the Court DENIES Petitioner’s motion and DECLINES to issue a certificate 15 of appealability in this case. Further, the Court DENIES Petitioner’s motion for appointment of 16 counsel on appeal. 17 18 IT IS SO ORDERED. DATED: May 8, 2013 19 Hon. Michael M. Anello United States District Judge 20 21 22 23 24 25 26 27 28 1 The Court’s previous order, however, did provide Petitioner the opportunity to proceed in a Court with proper jurisdiction. 13cv863 -2-

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