McGuire v. Jones et al

Filing 14

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)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TOMMY MCGUIRE,
Petitioner,

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Case No. 17-cv-2260-BAS-BLM
ORDER DENYING
CERTIFICATE OF
APPEALABILITY

v.
JULIE JONES,

[ECF No. 13]
Respondent.

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On November 9, 2017, this Court dismissed Petitioner Tommy McGuire’s

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Petition for a Writ of Habeas Corpus with prejudice for lack of jurisdiction. (ECF

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No. 3.) The Court also denied Petitioner’s motion to reconsider that dismissal. (ECF

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No. 7.) Although the Court did not grant or deny a certificate of appealability,

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Petitioner subsequently appealed both denials to the Ninth Circuit. (ECF No. 8.) The

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Ninth Circuit has remanded the case to this Court for limited issue of whether to grant

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or deny a certificate of appealability to Petitioner. (ECF No. 13.) The Court denies

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Petitioner a certificate.

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Pursuant to Rule 11 of the Rules following 28 U.S.C. §2254, a district court

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“must issue or deny a certificate of appealability when it enters a final order adverse

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to the applicant.” A habeas petitioner may not appeal the denial of a habeas petition

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concerning detention arising from state court proceedings unless he obtains a
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17cv2260

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certificate of appealability from a district or circuit court judge.

28 U.S.C.

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§2253(c)(1)(A); see also United States v. Asrar, 116 F.3d 1268, 1269−70 (9th Cir.

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1997). The district court may issue a certificate of appealability if the petitioner “has

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made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

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§2253(c)(2). To meet this threshold showing, a petitioner must show that: (1) the

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issues are debatable among jurists of reason, (2) that a court could resolve the issues

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in a different manner, or (3) that the questions are adequate to deserve encouragement

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to proceed further. Maciel v. Cate, 731 F.3d 928, 932 (9th Cir. 2013). Based on a

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review of the record Petitioner submitted to this Court (ECF No. 1) and the express

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jurisdictional limitations of 28 U.S.C. §2241(a) (“Writs of habeas corpus may be

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granted by the Supreme Court, any justice thereof, the district courts and any circuit

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judge within their respective jurisdictions”) (emphasis added), the Court finds that

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jurists of reason could not find debatable whether this Court was correct in dismissing

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the Petition for lack of jurisdiction and denying reconsideration of dismissal.

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Based on the foregoing, it is HEREBY ORDERED that Petitioner is

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DENIED a certificate of appealability as to dismissal of the Petition with prejudice

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(ECF No. 3) and denial of reconsideration of dismissal (ECF No. 7).

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IT IS SO ORDERED.

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DATED: January 11, 2018

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17cv2260