Sullivan v. Luna

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 26, 2024
• Docket: 24-339
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 26 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DEMITRIS SULLIVAN, No. 24-339 D.C. No. 2:22-cv-07910-JWH-MAA Petitioner - Appellant,

v. MEMORANDUM*

ROBERT G. LUNA,

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California John W. Holcomb, District Judge, Presiding

Submitted September 17, 2024**

Before: WARDLAW, BADE, and H.A. THOMAS, Circuit Judges.

Demitris Sullivan appeals from the district court’s judgment dismissing

without prejudice his 28 U.S.C. § 2241 habeas petition. We dismiss for lack of

jurisdiction.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Pursuant to Anders v. California, 386 U.S. 738 (1967), Sullivan’s counsel

has filed a brief stating that there are no grounds for relief, along with a motion to

withdraw as counsel of record. We have provided Sullivan the opportunity to file a

pro se supplemental brief. No pro se supplemental brief or answering brief has

been filed.

Sullivan’s § 2241 petition alleged claims regarding his ongoing criminal

prosecutions in Los Angeles County Superior Court and his state competency

proceedings. Because Sullivan’s § 2241 petition challenged his detention arising

out of process issued by a state court, he was required to obtain a certificate of

appealability (“COA”) to proceed with this appeal. See Wilson v. Belleque, 554

F.3d 816, 825 (9th Cir. 2009). However, Sullivan did not obtain a COA and we

decline to grant one because our independent review of the record pursuant to

Penson v. Ohio, 488 U.S. 75, 80 (1988), reflects that “jurists of reason would [not]

find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would [not] find it debatable whether

the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.

473, 484 (2000); see also 28 U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 565 U.S.

134, 140-41 (2012); Wilson, 554 F.3d at 825-26. We, therefore, dismiss this

appeal for lack of jurisdiction. See United States v. Mikels, 236 F.3d 550, 552 (9th

Cir. 2001).

2 24-339 Counsel’s motion to withdraw is GRANTED.

DISMISSED.

3 24-339