McGuire v. Jones et al
ORDER denying Certificate of Appealability. Signed by Judge Cynthia Bashant on 1/11/2018. (USCA Case Number 17-56908. Order electronically transmitted to the US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Case No. 17-cv-2260-BAS-BLM
[ECF No. 13]
On November 9, 2017, this Court dismissed Petitioner Tommy McGuire’s
Petition for a Writ of Habeas Corpus with prejudice for lack of jurisdiction. (ECF
No. 3.) The Court also denied Petitioner’s motion to reconsider that dismissal. (ECF
No. 7.) Although the Court did not grant or deny a certificate of appealability,
Petitioner subsequently appealed both denials to the Ninth Circuit. (ECF No. 8.) The
Ninth Circuit has remanded the case to this Court for limited issue of whether to grant
or deny a certificate of appealability to Petitioner. (ECF No. 13.) The Court denies
Petitioner a certificate.
Pursuant to Rule 11 of the Rules following 28 U.S.C. §2254, a district court
“must issue or deny a certificate of appealability when it enters a final order adverse
to the applicant.” A habeas petitioner may not appeal the denial of a habeas petition
concerning detention arising from state court proceedings unless he obtains a
certificate of appealability from a district or circuit court judge.
§2253(c)(1)(A); see also United States v. Asrar, 116 F.3d 1268, 1269−70 (9th Cir.
1997). The district court may issue a certificate of appealability if the petitioner “has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§2253(c)(2). To meet this threshold showing, a petitioner must show that: (1) the
issues are debatable among jurists of reason, (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. Maciel v. Cate, 731 F.3d 928, 932 (9th Cir. 2013). Based on a
review of the record Petitioner submitted to this Court (ECF No. 1) and the express
jurisdictional limitations of 28 U.S.C. §2241(a) (“Writs of habeas corpus may be
granted by the Supreme Court, any justice thereof, the district courts and any circuit
judge within their respective jurisdictions”) (emphasis added), the Court finds that
jurists of reason could not find debatable whether this Court was correct in dismissing
the Petition for lack of jurisdiction and denying reconsideration of dismissal.
Based on the foregoing, it is HEREBY ORDERED that Petitioner is
DENIED a certificate of appealability as to dismissal of the Petition with prejudice
(ECF No. 3) and denial of reconsideration of dismissal (ECF No. 7).
IT IS SO ORDERED.
DATED: January 11, 2018
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