(HC) Munoz v. Pallares ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GINA DAWN MUNOZ, No. 2:20-CV-2168-DMC-P 12 Petitioner, 13 v. ORDER 14 M. PALLARES, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has initiated this action with a 18 motion requesting the Court issue a certificate of appealability. See ECF No. 1. 19 It appears from Petitioner’s filing that she seeks leave of Court to submit a late- 20 filed federal habeas corpus petition by a state prisoner. Before a petitioner can appeal a district 21 court decision denying or dismissing a habeas corpus petition, a certificate of appealability must 22 issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Where the petition is denied on the 23 merits, a certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has 24 made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The 25 Court must either issue a certificate of appealability indicating which issues satisfy the required 26 showing or must state the reasons why such a certificate should not issue. See Fed. R. App. P. 27 22(b). Where the petition is dismissed on procedural grounds, a certificate of appealability 28 “should issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether 1 | the district court was correct in its procedural ruling’; and (2) ‘that jurists of reason would find it 2 || debatable whether the petition states a valid claim of the denial of a constitutional right.’” Morris 3 | v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 4 } S.Ct. 1595, 1604 (2000)). 5 Here, Petitioner has not filed any operative habeas petition which has been denied 6 | or dismissed by this Court. Therefore, the request for a certificate of appealability is premature 7 | and will be denied as such. Petitioner will be required to file a petition on the form provided by 8 | the Court. Petitioner is cautioned that failure to do so within the time provided may result in 9 | dismissal of the entire action without prejudice for lack of prosecution. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. Petitioner’s motion for a certificate of appealability, ECF No. 1, is denied 12 | as premature; 13 2. Within 30 days of the date of this order, Petitioner shall file her habeas 14 | corpus petition on the form provided; and 15 3. The Clerk of the Court is directed to forward to Plaintiff a form habeas 16 | corpus petition by a state prisoner. 17 | Dated: April 13, 2021 18 DENNIS M. COTA 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28