Neal v. Rios et al

Filing 7

ORDER signed by Magistrate Judge Sandra M. Snyder on 2/23/2010 declining to issue a CERTIFICATE OF APPEALABILITY re 6 Notice of Appeal. (Lundstrom, T)

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 HECTOR RIOS, JR., 13 Respondent. 14 15 On February 5, 2010, the undersigned dismissed the instant petition for writ of habeas 16 corpus filed pursuant to 28 U.S.C. § 2241, for failure to state a cognizable federal claim and the 17 18 On February 17, 2010, Petitioner filed a notice of appeal. (Court Doc. 6.) A certificate of 19 appealability is required if, as here, the petition is a successive section 2255 petition disguised as 20 21 express request was made for a certificate of appealability, the notice of appeal shall be deemed 22 to constitute a request for a certificate. See Fed. R.App. P. 22(b); United States v. Asrar, 108 23 F.3d 217, 218 (9th Cir. 1997). 24 The controlling statute in determining whether to issue a certificate of appealability is 28 25 U.S.C. § 2253, which provides as follows: 26 27 28
Pursuant to 28 U.S.C. § 636(c)(1), Petitioner consented to the jurisdiction of the United States Magistrate J u d g e . Local Rule 305(b).
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UNITED STATES DISTRICT COURT

DENARD DARNELL NEAL, Petitioner, v.

1:10-cv-00005-SMS (HC) ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY [Doc. 6]

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action was terminated.1 (Court Docs. 4, 5.)

a section 2241 petition. Porter v. Adams, 244 F.3d 1006, 1007 (9th Cir. 2001). Although no

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(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 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.

10 11 12 13 In the present case, the Court does not find that jurists of reason would not find it 14 debatable whether the petition was properly dismissed for failure to state a cognizable claim 15 under 28 U.S.C. 2241 and should be raised by way of 28 U.S.C. § 2255. Petitioner has not made 16 the required substantial showing of the denial of a constitutional right. Accordingly, Petitioner's 17 request for a certificate of appealability is DENIED. 18 19 IT IS SO ORDERED. 20 21 22 23 24 25 26 27 28 2 Dated: icido3 February 23, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE (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).