Foley v. Rowland

Filing 46

ORDER signed by Chief Judge Morrison C. England, Jr. on 2/14/2013 DECLINING to issue a Certificate of Appealability; DIRECTING the Clerk of Court to serve a copy of this order on the United States Court of Appeals for the Ninth Circuit. (cc: Appeals Court - Ninth Circuit) (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARK D. FOLEY,
Petitioner,

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No. 2:01-cv-00714-MCE JFM P

vs.

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ORDER

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JAMES ROWLAND, et al.,

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Respondents.
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Petitioner is a state prisoner proceeding with an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Judgment was entered in this action on August 18, 2004.

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On July 18, 2011, petitioner filed, pro se, a request “that the court allow [him] back in to the

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courts to continue [his] appeal (rights) process afforded to me under the United States

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Constitution.” By order filed July 2, 2012, petitioner’s request was construed as a motion for

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relief from judgment pursuant to Fed. R. Civ. P. 60(b)(6). On September 12, 2012, the

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Magistrate Judge issued findings and recommendations recommending that the motion be

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denied. Petitioner did not file objections to the findings and recommendations. By Order filed

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September 28, 2012, the findings and recommendations were adopted in full and petitioners Rule

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60(b)(6) motion was denied.

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On November 1, 2012, petitioner filed a notice of appeal and a request for

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certificate of appealability, dated October 22, 2012. On November 2, 2012, the notice of appeal

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was processed to the United States Court of Appeals for the Ninth Circuit. On January 25, 2013,

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the United States Court of Appeals remanded the matter to this Court for the limited purpose of

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granting or denying a certificate of appealability.

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Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United

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States District Courts, “[t]he district court must issue or a deny a certificate of appealability

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when it enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. A

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certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a

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substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The court

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must either issue a certificate of appealability indicating which issues satisfy the required

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showing or must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b).

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For the reasons set forth in the Magistrate Judge’s September 12, 2012 findings and

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recommendations, to which no objections were interposed, petitioner has not shown that he is

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entitled to relief from the judgment entered in this action on August 18, 2004. Moreover, for the

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reasons set forth in the Magistrate Judge’s July 1, 2004 findings and recommendations, which

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were adopted in full by this Court on August 18, 2004, and footnote two of the September 12,

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2012 findings and recommendations, petitioner has not made a substantial showing of the denial

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of a constitutional right. Accordingly, no certificate of appealability should issue.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. This Court declines to issue a certificate of appealability; and

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2. The Clerk of the Court is directed to serve a copy of this order on the United

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States Court of Appeals for the Ninth Circuit.

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DATED:

February 14, 2013

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__________________________________________
MORRISON C. ENGLAND, JR., CHIEF JUDGE
UNITED STATES DISTRICT JUDGE

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