(HC)Sjodin v. State of California

Opinion

KIRK ARDELL SJODIN, JR., No. 1:23-cv-00236-ADA-CDB (HC) Petitioner, v. ORDER DECLINING TO GRANT CERTIFICATE OF APPEALABILITY

Respondent.

On May 31, 2023, the court adopted findings and recommendations that the petition for writ of habeas corpus be dismissed. (ECF No. 22.) On June 28, 2023, petitioner filed a notice of appeal. (ECF No. 24.) Under Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the court has considered whether to issue a certificate of appealability. Before petitioner can appeal this decision, 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 nght.’” 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)). For the reasons set forth in the Magistrate Judge’s findings and recommendations (ECF No. 18) and the order adopting those findings and recommendations (ECF No. 22), the court finds that issuance of a certificate of appealability is not warranted in this case. Petitioner has not met the “in custody” requirement necessary for a court to find jurisdiction over his habeas corpus petition. (ECF No. 22 at 2.) Accordingly, a certificate of appealability will not be issued. The Clerk of the Court is directed to forward this order, along with the record in this case, to the United States Court of Appeals for the Ninth Circuit. DATED: March 5, 2024. / CHIEF ED STATES DISTRICT JUDGE