Jose M Gallegos v. Leland McEwen

Filing 20

ORDER by Judge George H Wu,, Order by Judge George H Wu denying certificate of appealability. (dmap)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOSE M. GALLEGOS,

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Petitioner,

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v.

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LELAND MCEWEN, Warden,

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Respondent.

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NO. CV 11–5195 GW (FMO)

ORDER DENYING CERTIFICATE OF
APPEALABILITY

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Contemporaneously with the filing of this Order, Judgment has been entered dismissing

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the Petition for Writ of Habeas Corpus in this action. Under the Antiterrorism and Effective Death

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Penalty Act, a state prisoner seeking to appeal a district court’s final order in a habeas corpus

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proceeding must obtain a Certificate of Appealability (“COA”) from the district judge or a circuit

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judge. 28 U.S.C. § 2253(c)(1)(A). A COA may issue “only if the applicant has made a substantial

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showing of the denial of a constitutional right.” Id. at § 2253(c)(2); accord Williams v. Calderon,

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83 F.3d 281, 286 (9th Cir.), cert. denied, 517 U.S. 1183 (1996). “A petitioner satisfies this

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standard by demonstrating that jurists of reason could disagree with the district court’s resolution

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of his constitutional claims or that jurists could conclude the issues presented are adequate to

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deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct.

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1029, 1034 (2003); see also Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 1603-04

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(2000).

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When a district court has dismissed a petition on procedural grounds, the reviewing court

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should apply a two-step analysis, and a COA should issue if the petitioner can show both: (1) “that

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jurists of reason would find it debatable whether the district court was correct in its procedural

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ruling[;]” and (2) “that jurists of reason would find it debatable whether the petition states a valid

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claim of the denial of a constitutional right[.]” Slack, 529 U.S. at 478, 120 S.Ct. at 1600-01.

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The Court dismissed the Petition with prejudice because the Petition is time-barred under

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28 U.S.C. § 2244(d). The Petition was filed over six months after the expiration of the statute of

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limitations. Given the fact that the Petition was clearly untimely, petitioner cannot make the

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requisite showing “that jurists of reason would find it debatable whether the district court was

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correct in its procedural ruling.” Slack, 529 U.S. at 478, 120 S.Ct. at 1600-01.
Based on the foregoing, IT IS ORDERED that a Certificate of Appealability is denied.
DATED: July 11, 2012.

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GEORGE H. WU
UNITED STATES DISTRICT JUDGE

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