Stuart v. Singh

Filing 23

ORDER signed by Judge Morrison C. England, Jr on 11/15/11: Petitioner's request for a certificate of appealability 22 , is DENIED. (Kaminski, H)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WENDELL STUART, 12 Petitioner, 13 14 No. 2:10-cv-2098 MCE KJN P vs. ORDER SINGH, 15 Respondent. 16 / 17 Petitioner, a state prisoner proceeding without counsel, has filed a notice of appeal 18 of this court’s dismissal of petitioner’s application for a writ of habeas corpus, and thus moves 19 for a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 20 A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the 21 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 22 2253(c)(2). The court must either issue a certificate of appealability indicating which issues 23 satisfy the required showing, or state the reasons why such a certificate should not issue. Fed. R. 24 App. P. 22(b). 25 /// 26 /// 1 1 This court properly dismissed as time-barred the instant petition for writ of habeas 2 corpus; petitioner failed to assert any basis to warrant equitable tolling of the limitations period. 3 Moreover, the court found, alternatively, a lack of support for petitioner’s “actual innocence” and 4 due process claims. See Magistrate Judge’s Findings and Recommendations, filed July 14, 2011 5 (Docket No. 15), and Order Adopting Findings and Recommendations, filed September 12, 2011 6 (Docket No. 20). Therefore, petitioner has not made a substantial showing of the denial of a 7 constitutional right. 28 U.S.C. § 2253(c)(2). 8 9 10 Accordingly, IT IS HEREBY ORDERED that petitioner’s request for a certificate of appealability (Dkt. No. 22), is DENIED. Dated: November 15, 2011 11 12 13 ________________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 2

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