Harper v. Sisto et al
Filing
20
ORDER signed by Judge Frank C. Damrell, Jr on 5/21/2010 re 19 ORDERING that a certificate of appealability should not issue in this action.(Duong, D)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. D. K. SISTO, WARDEN, et al., Respondents. / Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's April 27, 2010 denial of his application for a writ of habeas corpus. Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b); Hayward v. Marshall, No. 06-55392, 2010 WL 1664977, *5 (9th Cir. Apr.22, 2010) (en banc). 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). 1 FINDINGS & RECOMMENDATIONS JOHN E. HARPER, Petitioner, No. CIV S-08-1410 FCD DAD P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
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"The standard for a certificate of appealability is lenient." Hayward, 2010 WL 1664977, at *4. A petitioner need only "show that reasonable jurists could debate the district court's resolution of that the issues are adequate to deserve encouragement to proceed further." Id. (internal quotations omitted). See also Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Barefoot v. Estelle, 463 U.S. 880, 893 (1983); Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002).1 For the reasons set forth in the magistrate judge's March 24, 2010 findings and recommendations, the court finds that petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability should not issue in this action. IT IS SO ORDERED. DATED: May 21, 2010.
_______________________________________ FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE
Except for the requirement that appealable issues be specifically identified, the standard for issuance of a certificate of appealability is the same as the standard that applied to issuance of a certificate of probable cause. Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) . 2
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