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Donald William Tarnawa v. Michael Babcock

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 22, 2013

DONALD WILLIAM TARNAWA, PETITIONER,
v.
MICHAEL BABCOCK, RESPONDENT.

ORDER

Petitioner, a federal prisoner proceeding pro se, has filed a notice of appeal following this court's February 7, 2013 dismissal of his petition for a writ of habeas corpus under to 28 U.S.C. § 2241 for lack of jurisdiction. The undersigned issued the order dismissing this action following petitioner's consent to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c). See Doc. No. 3. Before petitioner can proceed with his appeal, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

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. Fed. R. App. P. 22(b).

Where, as here, the petition was dismissed for lack of jurisdiction, a certificate of appealability "should issue if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). See also United States v. Zuno-Arce, 339 F.3d 886 (9th Cir. 2003).

After reviewing the entire record herein, this court finds that petitioner has not satisfied the first requirement for issuance of a certificate of appealability in this case. Specifically, in this court's February 7, 2013, order it was concluded that this court lacked jurisdiction over petitioner's application for relief under 28 U.S.C. § 2241 in which he sought to challenge a judgment and sentence of the United States District Court for the Eastern District of Texas where he still had a petition under 28 U.S.C. § 2255 pending. Petitioner has failed to show that jurists of reason would find this court's conclusion that it lacked of jurisdiction over the § 2241 petition to be debatable.

Accordingly, the court declines to issue a Certificate of Appealability (COA) in this action.

20130422

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