Low v. Salinas
Filing
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ORDER signed by Magistrate Judge Craig M. Kellison on 6/22/11 GRANTING 12 Motion to Dismiss; this action is DISMISSED without prejudice; the court DECLINES to issue a certificate of appealability; and Clerk is directed to enter judgment and close this file. CASE CLOSED. (Dillon, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TONY RICHARD LOW,
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Petitioner,
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vs.
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No. CIV S-11-0029-CMK-P
S.M. SALINAS,
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ORDER
Respondent.
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/
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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the written consent of all parties, this
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case is before the undersigned as the presiding judge for all purposes, including entry of final
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judgment. See 28 U.S.C. § 636(c). Pending before the court is respondent’s motion to dismiss
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(Doc. 12).
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Respondent argues that the court should abstain from hearing petitioner’s claims
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at this time under Younger v. Harris, 401 U.S. 37 (1971). In particular, respondent notes that
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petitioner’s direct appeal of his conviction and sentence is still pending in the California Court of
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Appeal. The court agrees with respondent that this action should be dismissed as premature.
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See Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) (holding that a “would-be habeas
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corpus petitioner must await the outcome of his appeal. . . .”).
Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the
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court has considered whether to issue a certificate of appealability. Before petitioner can appeal
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this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P.
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22(b). Where the petition is denied on the merits, a certificate of appealability may issue under
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28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a
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constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of
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appealability indicating which issues satisfy the required showing or must state the reasons why
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such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed
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on procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1)
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‘that jurists of reason would find it debatable whether the district court was correct in its
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procedural ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition
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states a valid claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775,
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780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000)).
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For the reasons set forth above, the court finds that issuance of a certificate of appealability is not
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warranted in this case.
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Accordingly, IT IS HEREBY ORDERED that:
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1.
Respondent’s motion to dismiss (Doc. 12) is granted;
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2.
This action is dismissed without prejudice;
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3.
The court declines to issue a certificate of appealability; and
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4.
The Clerk of the Court is directed to enter judgment and close this file.
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DATED: June 22, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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