(HC) Cruz v. Price

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA PETER CASEY CRUZ, No. 1:18-cv-01360-AWI-JLT (HC) 12 Petitioner, ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 13 v. ORDER DIRECTING CLERK OF COURT 14 TO SERVE COPY OF ORDER ON NINTH BRANDON PRICE, Executive Director, CIRCUIT COURT OF APPEALS Respondent.

18 Petitioner is a state detainee proceeding in propria persona with a petition for writ of habeas corpus. On May 3, 2019, the Court dismissed the petition without prejudice. Petitioner appealed to the Ninth Circuit Court of Appeals and the appeal was processed on June 10, 2019.

21 On July 17, 2019, the Ninth Circuit remanded the matter for the limited purpose of granting or denying a certificate of appealability.

23 The controlling statute in determining whether to issue a certificate of appealability is 28 24 U.S.C. § 2253, which provides as follows: 25 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.

27 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's | detention pending removal proceedings.

2 (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— (A) the final order in a habeas corpus proceeding in which the detention 4 complained of arises out of process issued by a State court; or 5 (B) the final order in a proceeding under section 2255.

6 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue 8 or issues satisfy the showing required by paragraph (2).

9 If a court denies a petitioner’s petition, the court may only issue a certificate of | appealability when a petitioner makes a substantial showing of the denial of a constitutional right.

11 | 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that || “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have | been resolved in a different manner or that the issues presented were ‘adequate to deserve || encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting | Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

16 In the present case, the Court finds that Petitioner has not made the required substantial | showing of the denial of a constitutional right to justify the issuance of a certificate of | appealability. Reasonable jurists would not find the Court’s determination that Petitioner is not | entitled to federal habeas corpus relief debatable, wrong, or deserving of encouragement to | proceed further.

1 Accordingly, IT IS HEREBY ORDERED that: 92 VOI. The Court DECLINES to issue a certificate of appealability and 93 2. The Clerk shall forward a copy of this order to the Ninth Circuit Court of Appeals.

IT IS SO ORDERED.

25 K f) | Dated: October 3.2019 _ □ _-SENIOR DISTRICT JUDGE