The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge
ORDER DENYING APPLICATION FOR CERTIFICATE OF APPEALABILITY
The Ninth Circuit has ordered this Court to either grant or deny a certificate of appealability ("COA") in the instant case. (Doc. No. 399.) The Court decides the matter without oral argument. See S.D. Cal. Civ. R. 7.1.(d.1). And for the reasons discussed below, the Court DENIES Petitioner a COA.
On March 21, 2008, a jury found Petitioner Kathryn J. Hanes ("Petitioner") guilty of one count of conspiracy and four counts of tax evasion. (Doc. No. 252.) On November 17, 2008, this Court entered the judgment in Petitioner's criminal case. (Doc. No. 341.) She was ordered to surrender herself to the United States Bureau of Prisons, for a term of 18 months, by noon on December 5, 2008. (Id.) On December 22, 2008, Petitioner, proceeding pro se, attempted to commence habeas corpus proceedings pursuant to 28 U.S.C. § 2255. This Court rejected that filing because Petitioner was not yet in custody. In fact, as of today, she is still out on bond pending her direct appeal. (Doc. No. 356.) Petitioner has appealed the rejection of her habeas petition to the Ninth Circuit. (Doc. No. 381.) On March 6, 2009, the Ninth Circuit remanded that appeal to this Court for the limited purpose of granting or denying a certificate of appealability ("COA"). (Doc. No. 399.)
Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), a state prisoner may not appeal the denial of a...habeas petition unless he obtains a COA from a district or circuit judge. 28 U.S.C. § 2253 (c)(1)(A); see also United States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997) (holding that district courts retain authority to issue COAs under the AEDPA).
In deciding whether to grant a COA, a court must either indicate the specific issues supporting a certificate or state reasons why a certificate is not warranted. Asrar, 116 F.3d at 1270. A court may issue a COA only if the applicant has made a "substantial showing" of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court has elaborated on the meaning of this requirement:
Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy section 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (emphasis added).
On January 14, 2009, in the Notice of Appeal for the current matter, Petitioner wrote that she is "Sentenced to custody - out on bond pending 9(b) motion." (Doc. 381.) Thus, as mentioned above, Petitioner is not currently incarcerated. The requested habeas relief is only available to individuals who are in federal custody. See 28 U.S.C. § 2255. As such, this Court lacked jurisdiction to accept the document and consider Petitioner's request. Further, the definiteness of the custody prerequisite makes it certain that no reasonable jurist would find this Court's rejection of Petitioner's habeas filing debatable or wrong.
For the foregoing reasons, the Court DENIES Petitioner's request for a ...