Telles v. Calderon

Filing 24

ORDER signed by Judge John A. Mendez on 7/19/11 ORDERING that the court declines to issue a certificate of appealability. (Becknal, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARMANDO TELLES,

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Petitioner,

No. 2:00-cv-1574 JAM JFM (HC)

vs.
ARTHUR CALDERON,

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Respondent.

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ORDER
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Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. On June 14, 2005, judgment was entered in this court

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denying the petition. On July 15, 2011, petitioner filed a notice of appeal. Before petitioner can

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appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App.

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P. 22(b).

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A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

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applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

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§ 2253(c)(2). The court must either issue a certificate of appealability indicating which issues

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satisfy the required showing or must state the reasons why such a certificate should not issue.

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Fed. R. App. P. 22(b). Before petitioner can appeal this decision, a certificate of appealability

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must issue. 28 U.S.C. § 2253(c); Fed. R .App. P. 22(b).
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The timely filing of a notice of appeal is a jurisdictional requirement. Scott v.

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Younger, 739 F.2d 1464, 1466 (9th Cir. 1984). Here, the time limit for filing a notice of appeal

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following entry of judgment is thirty days. See Fed. R. App. P. 4(a). Petitioner’s notice of

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appeal in this action was filed more than six years after entry of judgment. While petitioner

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asserts in his notice of appeal that he can show good cause for the extraordinary delay, he has not

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tendered any evidence to support this assertion. Moreover, the instant notice of appeal was filed

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well past the 180 day period set by Fed. R. App. P. 4(a)(6) for reopening the time to file a notice

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of appeal.

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The United States Court of Appeals for the Ninth Circuit has held that the

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issuance of a certificate of probable cause cannot vest the court of appeals with jurisdiction if

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jurisdiction is not proper in that court. Hayward v. Britt, 572 F.2d 1324, 1325 (9th Cir. 1978).

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The rationale of Hayward applies with equal force to a certificate of appealability. For these

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reasons, the court declines to issue a certificate of appealability.

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IT IS SO ORDERED.
DATED: July 19, 2011

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/s/ John A. Mendez
UNITED STATES DISTRICT JUDGE

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