Armstrong v. People of the State of California et al

Filing 30

ORDER signed by Senior Judge Lawrence K. Karlton on 8/31/09 ORDERING that a Certificate of Appealability should not issue in this Action. (Mena-Sanchez, L)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 Respondents. 15 16 17 18 19 20 21 22 23 24 25 26 / Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's March 10, 2009 dismissal of his application for a writ of habeas corpus for failure to exhaust state remedies. 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 "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 must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). Where, as here, the petition was dismissed on procedural grounds, a certificate of appealability "should issue if the prisoner can show: (1) `that jurists of reason would find it 1 ORDER vs. D.L. RUNNELS, et al., IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA HAROLD L. ARMSTRONG, Petitioner, No. CIV S-08-0031 LKK DAD P

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debatable whether the district court was correct in its procedural ruling'; and (2) `that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.'" Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). After careful review of the entire record herein, this court finds that petitioner has not satisfied the first requirement for issuance of a certificate of appealability in this case. Specifically, there is no showing that jurists of reason would find it debatable whether petitioner has exhausted state remedies. Accordingly, a certificate of appealability should not issue in this action. IT IS SO ORDERED. DATED: August 31, 2009.

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