(HC) Franks v. Superior Court of Stanislaus County ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TOM M. FRANKS, No. 1:20-cv-00136-NONE-EPG-HC 12 Petitioner, 13 v. ORDER DISMISSING HABEAS ACTION, DIRECTING CLERK OF COURT TO CLOSE 14 SUPERIOR COURT OF STANISLAUS CASE, AND DECLINING TO ISSUE A COUNTY, CERTIFICATE OF APPEALABILITY 15 Respondent. 16 17 On January 27, 2020, petitioner filed a federal habeas petition challenging the state court’s 18 denial of his motion for DNA testing. (Doc. No. 1.) On April 2, 2020, the court granted 19 petitioner sixty days in which to assert claims under 42 U.S.C. § 1983. (Doc. No. 7.) To date, no 20 § 1983 complaint has been filed, and the time for doing so has passed. Accordingly, the court 21 will dismiss the instant habeas action without prejudice to petitioner refiling his claims in a new 22 § 1983 action. 23 Having previously found that petitioner is not entitled to habeas relief, the court now turns 24 to whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus 25 has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 26 allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. 27 § 2253. The court should issue a certificate of appealability if “reasonable jurists could debate 28 4:6 UVM EOE AR SMU Pa ee YY ee 1 | whether (or, for that matter, agree that) the petition should have been resolved in a different 2 | manner or that the issues presented were ‘adequate to deserve encouragement to proceed 3 | further.’” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 4 | 880, 893 & n.4 (1983)). 5 In the present case, the court finds that reasonable jurists would not find the court’s 6 | determination that the petition should be dismissed debatable or wrong, or that petitioner should 7 | be allowed to proceed further. Therefore, the court declines to issue a certificate of appealability. 8 Accordingly: 9 1. The instant habeas action is DISMISSED without prejudice to petitioner refiling his 10 claims in a new § 1983 action; 11 2. The Clerk of Court is directed to assign a district judge to this case for the purpose of 12 closing the case and then to close the case; and 13 3. The court declines to issue a certificate of appealability. 14 15 IT IS SO ORDERED. ~ ‘ae 16 Dated: _ July 15, 2020 wae os UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28