Kerns v. Skribner et al

Filing 50

ORDER signed by Judge Garland E. Burrell, Jr on 7/27/2009 ORDERING that a certificate of appealability should NOT ISSUE in this action. FURTHER ORDERING that 49 Motion for Injunctive Relief is DENIED. (Waggoner, D)

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 vs. D. ADAMS, Respondents. / Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's April 23, 2009 denial of his application for a writ of habeas corpus. Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). In addition, petitioner has filed a request for injunctive relief, asking the court to direct prison officials to provide petitioner with his legal property so he can file a request for a certificate of appealability. However, this court deems petitioner's notice of appeal to encompass a request that it issue such a certificate. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 1 ORDER JAMES KERNS, Petitioner, 2:05-cv-746-GEB-KJM-P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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§ 2253(c)(2). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). For the reasons set forth in the magistrate judge's January 26, 2009 findings and recommendations, petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability should not issue in this action. Moreover, because the court deems the notice of appeal to include a request for the issuance of a certificate of appealability, petitioner's motion for injunctive relief (docket no. 49) is denied. Dated: July 27, 2009

GARLAND E. BURRELL, JR. United States District Judge

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