(HC) Munoz v. Pallares

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA GINA DAWN MUNOZ, No. 2:20-CV-2168-DMC-P 12 Petitioner, 13 v. ORDER M. PALLARES, 15 Respondent.

17 Petitioner, a state prisoner proceeding pro se, has initiated this action with a motion requesting the Court issue a certificate of appealability. See ECF No. 1.

19 It appears from Petitioner’s filing that she seeks leave of Court to submit a late- filed federal habeas corpus petition by a state prisoner. Before a petitioner can appeal a district court decision denying or dismissing a habeas corpus petition, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Where the petition is denied on the merits, a certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether | the district court was correct in its procedural ruling’; and (2) ‘that jurists of reason would find it || debatable whether the petition states a valid claim of the denial of a constitutional right.’” Morris | v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 } S.Ct. 1595, 1604 (2000)).

5 Here, Petitioner has not filed any operative habeas petition which has been denied | or dismissed by this Court. Therefore, the request for a certificate of appealability is premature | and will be denied as such. Petitioner will be required to file a petition on the form provided by | the Court. Petitioner is cautioned that failure to do so within the time provided may result in | dismissal of the entire action without prejudice for lack of prosecution.

10 Accordingly, IT IS HEREBY ORDERED that: 11 1. Petitioner’s motion for a certificate of appealability, ECF No. 1, is denied | as premature; 13 2. Within 30 days of the date of this order, Petitioner shall file her habeas | corpus petition on the form provided; and 15 3. The Clerk of the Court is directed to forward to Plaintiff a form habeas | corpus petition by a state prisoner.

17 | Dated: April 13, 2021 18 DENNIS M. COTA 19 UNITED STATES MAGISTRATE JUDGE