Alcaraz v. Giurbino

Filing 55

ORDER signed by Senior Judge Lawrence K. Karlton on 6/2/10, ORDERING that 52 petitioner's application for a COA is DENIED. Petitioner's 50 motion to set aside the court's order is DENIED.(Kastilahn, A)

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. G.J. GIURBINO, Respondent. / Petitioner, a state prisoner proceeding without counsel, has filed a notice of appeal of this court's denial of his request to stay his petition for writ of habeas corpus, and moves for a certificate of appealability. (Dkt. Nos. 51, 52.) Petitioner has also filed a motion to set aside the court's order that he now appeals. (Dkt. No. 50.) 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. § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues satisfy the required showing, or state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). The court previously addressed petitioner's request and concluded that a certificate of apppealability would not issue. (Dkt. No. 49.) The court found (id. at 2): ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA TEODORO SEVERIANO ALCARAZ, Petitioner, No. 2:05-cv-1597 LKK KJN P

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This court properly found that petitioner failed to demonstrate good cause for his failure earlier to identify and exhaust his new claims. See Magistrate Judge's Findings and Recommendations, filed December 8, 2009 (Docket No. 38), and Order Adopting Findings and Recommendations, filed March 16, 2010 (Docket No. 46). Petitioner has therefore not made a substantial showing of the denial of a constitutional right. Petitioner has presented no basis for reconsidering this decision. Accordingly, a certificate of appealability shall not issue. For the same reasons, the court will deny petitioner's motion to set aside the court's underlying order. Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner's application for a certificate of appealability (Dkt. No. 52) is denied; and 2. Petitioner's motion to set aside the court's order (Dkt. No. 50) is denied. SO ORDERED. DATED: June 2, 2010.