Hiratsuka v. Houser

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA ALLEN HIRATSUKA, Petitioner, v. EARL HOUSER, Case No. 3:21-cv-00018-SLG-MMS Respondent.

ORDER RE: CERTIFICATE OF APPEALABILITY At Docket 67 is an order from the Ninth Circuit Court of Appeals remanding the above captioned action to this Court for the limited purpose of granting or denying a certificate of appealability.

Mr. Hiratsuka is a state pretrial detainee, who brought a Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241.1 The Magistrate Judge recommended the Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 be denied without prejudice because Mr. Hiratsuka was challenging ongoing state criminal proceedings.2 The Court reviewed and adopted the Magistrate Judge’s Report and Recommendation, dismissing the action without prejudice.3 Neither the Magistrate Judge’s Report and Recommendation nor the District Court’s Order

1 Docket 1.

2 Docket 58.

3 Docket 63.

Re: Final Report and Recommendation addressed the issuance of a certificate of appealability. 28 U.S.C. § 2253(c) requires that an appeal from a habeas corpus proceeding brought by a state prisoner may not advance unless a district or circuit court judge issues a certificate of appealability. A certificate of appealability may only issue if the petitioner-appellant has made a substantial showing of the denial of a constitutional right.4 The Court finds that Mr. Hiratsuka has not made the requisite showing of the denial of a constitutional right; therefore, a certificate of appealability will not be issued by this Court.5 Mr. Hiratsuka may request a certificate of appealability from the Ninth Circuit Court of Appeals.

DATED this 9th day of March, 2022 at Anchorage, Alaska.

/s/ Sharon L. Gleason UNITED STATES DISTRICT JUDGE

4 28 U.S.C. § 2253(c)(2).

5 28 U.S.C. §§ 2255(d), 2253(c)(2). See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (certificate of appealability may be granted only if applicant made a “substantial showing of the denial of a constitutional right,” i.e., a showing that “reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further” (internal quotations and citations omitted)).

Case No. 3:21-cv-00018-SLG-MMS, Hiratsuka v. Houser