(HC) Clearman v. Trate

Opinion

MARK ANTHONY CLEARMAN, Case No. 1:22-cv-00444-HBK (HC) Petitioner, ORDER DENYING CERTIFICATE OF APPEALABILITY 1 v.

Respondent. This matter comes before the Court upon sua sponte review of the file. Petitioner Mark Anthony Clearman is a federal prisoner who initiated this action by filing a pro se petition for writ of habeas corpus under 28 U.S.C. § 2241. (Doc. No. 1, “Petition”). On May 22, 2023, the undersigned granted Respondent’s motion to dismiss the Petition, the Petition was dismissed for lack of jurisdiction, and judgment was entered the same day. (Doc. No. 17-18). On June 12, 2023, Petitioner filed a Notice of Appeal. (Doc. No. 19). However, the Clerk of Court did not process the Notice of Appeal because the Court’s order dismissing the case did not address whether a certificate of appealability should be issued. (See docket). Having already determined that petitioner is not entitled to habeas relief, the Court now turns to whether a certificate of appealability should issue. See Harrison v. Ollison, 519 F.3d 1 Both parties have consented to the jurisdiction of a magistrate judge, in accordance with 28 U.S.C. § 636(c)(1). (Doc. No. 14). 952, 958 (9th Cir. 2008) (“Where a petition purportedly brought under § 2241 is merely a ‘disguised’ § 2255 motion, the petition cannot appeal from the denial of that petition without a [certificate of appealability].”). A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal, rather an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); see also 28 U.S.C. § 2253(c)(1)(A) (permitting habeas appeals from state prisoners only with a certificate of appealability). A judge shall grant a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the certificate must indicate which issues satisfy this standard, 28 U.S.C. § 2253(c)(3). In the present case, the Court finds that reasonable jurists would not find the determination that the Petition should be dismissed to be debatable or conclude } that the Petition should proceed further. Accordingly, it is ORDERED: The Court declines to issue a certificate of appealability. Dated: _ February 29, 2024 Mile. Wh fareh Zaskth HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE