Prophet v. Clark

Filing 38

ORDER signed by Judge Frank C. Damrell, Jr on 12/16/09 ORDERING that a certificate of appealability shall not issue in the present action. (Owen, 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. KEN CLARK, Respondent. / Petitioner, a state prisoner proceeding pro se, filed a timely notice of appeal of this court's November 12, 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 1 ORDER JOSEPH DANNY PROPHET, Petitioner, No. CIV S-07-2391 FCD CHS P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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court, or is "`adequate to deserve encouragement to proceed further.'" Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).1 In this case, petitioner failed to make a substantial showing with respect to any of the claims presented. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability shall not issue in the present action. DATED: December 16, 2009.

_______________________________________ FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE

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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