(HC) Munoz v. Pallares

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

GINA DAWN MUNOZ, No. 2:20-CV-2168-DMC-P

Petitioner, v. ORDER

M. PALLARES,

Respondent.

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.

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)).

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.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner’s motion for a certificate of appealability, ECF No. 1, is denied as premature;

2. Within 30 days of the date of this order, Petitioner shall file her habeas corpus petition on the form provided; and

3. The Clerk of the Court is directed to forward to Plaintiff a form habeas corpus petition by a state prisoner.

Dated: April 13, 2021

DENNIS M. COTA

UNITED STATES MAGISTRATE JUDGE