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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TOMMY MCGUIRE, Petitioner, 12 13 14 Case No. 17-cv-2260-BAS-BLM ORDER DENYING CERTIFICATE OF APPEALABILITY v. JULIE JONES, [ECF No. 13] Respondent. 15 16 17 On November 9, 2017, this Court dismissed Petitioner Tommy McGuire’s 18 Petition for a Writ of Habeas Corpus with prejudice for lack of jurisdiction. (ECF 19 No. 3.) The Court also denied Petitioner’s motion to reconsider that dismissal. (ECF 20 No. 7.) Although the Court did not grant or deny a certificate of appealability, 21 Petitioner subsequently appealed both denials to the Ninth Circuit. (ECF No. 8.) The 22 Ninth Circuit has remanded the case to this Court for limited issue of whether to grant 23 or deny a certificate of appealability to Petitioner. (ECF No. 13.) The Court denies 24 Petitioner a certificate. 25 Pursuant to Rule 11 of the Rules following 28 U.S.C. §2254, a district court 26 “must issue or deny a certificate of appealability when it enters a final order adverse 27 to the applicant.” A habeas petitioner may not appeal the denial of a habeas petition 28 concerning detention arising from state court proceedings unless he obtains a –1– 17cv2260 1 certificate of appealability from a district or circuit court judge. 28 U.S.C. 2 §2253(c)(1)(A); see also United States v. Asrar, 116 F.3d 1268, 1269−70 (9th Cir. 3 1997). The district court may issue a certificate of appealability if the petitioner “has 4 made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 5 §2253(c)(2). To meet this threshold showing, a petitioner must show that: (1) the 6 issues are debatable among jurists of reason, (2) that a court could resolve the issues 7 in a different manner, or (3) that the questions are adequate to deserve encouragement 8 to proceed further. Maciel v. Cate, 731 F.3d 928, 932 (9th Cir. 2013). Based on a 9 review of the record Petitioner submitted to this Court (ECF No. 1) and the express 10 jurisdictional limitations of 28 U.S.C. §2241(a) (“Writs of habeas corpus may be 11 granted by the Supreme Court, any justice thereof, the district courts and any circuit 12 judge within their respective jurisdictions”) (emphasis added), the Court finds that 13 jurists of reason could not find debatable whether this Court was correct in dismissing 14 the Petition for lack of jurisdiction and denying reconsideration of dismissal. 15 Based on the foregoing, it is HEREBY ORDERED that Petitioner is 16 DENIED a certificate of appealability as to dismissal of the Petition with prejudice 17 (ECF No. 3) and denial of reconsideration of dismissal (ECF No. 7). 18 IT IS SO ORDERED. 19 20 DATED: January 11, 2018 21 22 23 24 25 26 27 28 –2– 17cv2260

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