Villanueva v. Evans

Filing 34

ORDER signed by Judge William B. Shubb on 7/8/09 ORDERING a certificate of appealability SHALL NOT ISSUE in this action regarding 31 Notice of Appeal filed by Phillip Villanueva. (Carlos, K)

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. MIKE EVANS, Respondent. / Petitioner, a state prisoner proceeding pro se, has filed a timely notice of appeal of this court's May 5, 2009 order denying his application for 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). A certificate of appealability may issue under 28 U.S.C. § 2253 "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The certificate of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. § 2253(c)(3). A certificate of appealability should be granted for any issue that petitioner can demonstrate is "`debatable among jurists of reason,'" could be resolved differently by a different court, or is "`adequate to deserve encouragement to proceed further.'" Jennings v. Woodford, 1 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA PHILLIP VILLANUEVA, Petitioner, No. CIV S-07-2281 WBS CHS P

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290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).1 Petitioner has not met this standard. Federal habeas corpus relief is not available for the alleged error in application of California sentencing law. Petitioner has not properly alleged a violation of the Constitution or laws of the United States. Although his claim based on Blakely v. Washington, 542 U.S. 296 (2004) arguably raised constitutional implications, for the reason set forth in the Magistrate Judge's Findings and Recommendations, that claim is moot. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability shall not issue in the present action. DATED: July 8, 2009

Except for the requirement that appealable issues be specifically identified, the standard for issuance of a certificate of appealability is the same as the standard that applied to issuance of a certificate of probable cause. Jennings, at 1010. 2

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