1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUSTIN MARCUS ZINMAN, Case No. 2:23-cv-2404-TLN-JDP 12 Petitioner, 13 v. ORDER 14 JEFF MACOMBER, 15 Respondent. 16 17 18 Petitioner Justin Marcus Zinman (“Petitioner”), a state prisoner, brought this action under 19

challenging his state conviction. (ECF No. 20.) His initial petitions 20 failed to pass screening. (ECF Nos. 11, 16.) After the second amended petition was filed, but 21 before it was screened, Petitioner voluntarily dismissed the case. (ECF No. 22.) Then, in late 22 September, he filed a notice of intent to file a preliminary injunction (ECF No. 24) and a motion 23 to vacate the closing of the case (ECF No. 25) arguing that the case should proceed on a theory 24 that

is unconstitutional. (Id. at 2.) The magistrate judge recommended 25 those motions be denied (ECF No. 26) noting that the arguments in the motion to vacate were 26 legally frivolous. The Court adopted those recommendations (ECF No. 32) and Petitioner 27 appealed that adoption. (ECF No. 39) The Ninth Circuit has issued a limited remand for the 28 1 | purpose of deciding whether a certificate of appealability should issue. (ECF No. 45.) The Court 2 | finds that it should not. 3 The arguments in Petitioner’s motion for reconsideration are, as the magistrate judge 4 | found, frivolous. His claim that California Penal Code § 422 is unconstitutionally vague is 5 | legally unfounded and has been rejected by other courts in this circuit. See Ray v. Clark, No. CV 6 | 08-2847-R (PLA),

, *49-54 (C.D. Cal. Jul. 19, 2011). Further, it 7 | was Petitioner’s own decision to close the case and withdraw his petition.. A certificate of 8 | appealability should issue only if the petitioner has made a substantial showing of the denial of a 9 | constitutional right.

(c)(2). Petitioner has not made that showing because he has 10 | failed to demonstrate “that jurists of reason could disagree with the district court’s resolution of 11 his constitutional claims or that jurists could conclude the issues presented are adequate to 12 | deserve encouragement to proceed further.” Miller-El vy. Cockrell,

(2003). 13 Accordingly, the Court declines to issue a certificate of appealability as to the denial of 14 | Petitioner’s motions to vacate (ECF Nos. 25, 30) and his motion for preliminary injunction. (ECF 15 | No. 27.) 16 | Date: February 12, 2025 17 18 19 7, 20 TROY L. NUNLEY CHIEF UNITED STATES DISTRICT JUDGE

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