Washington v. Almedia et al

Filing 14

ORDER DENYING Requests for Certificate of Appealability signed by District Judge Lawrence J. O'Neill on 2/5/08. (Verduzco, M)

(HC) Washington v. Almedia et al

Doc. 14

1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner, a state prisoner, filed a petition for a writ of habeas corpus pursuant to 28U.S.C. § 2254. On November 7, 2007, Petitioner filed a notice of appeal. He has subsequently requested a certificate of appealability. The controlling statute, 28 U.S.C. § 2253, provides as follows: (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a ) ) Petitioner, ) ) vs. ) ) ) ED S. ALMEDIA, Warden, ) ) Respondent. ) ) ) ___________________________________ ) RODERICK WASHINGTON, 1:05-cv-01510 LJO WMW HC ORDER DENYING REQUESTS FOR A CERTIFICATE OF APPEALABILITY

Dockets.Justia.com

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 27 28

person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). In the present case, the court finds that Petitioner has failed to carry his burden of making a substantial showing of the denial of a constitutional right. Specifically, the court notes that a motion to dismiss is pending in this case, and no final, appealable order has been entered by the court. Accordingly, Petitioner's requests for a certificate of appealability are HEREBY DENIED. IT IS SO ORDERED. Dated: b9ed48 February 5, 2008 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

2