(HC) Davis v. Scribner et al

Filing 32

ORDER signed by Judge Frank C. Damrell, Jr. on 04/27/10 ORDERING that the 31 Motion for Certificate of Appealability is DENIED and COA shall not issue in the present action. (Benson, 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. L.E. SCRIBNER, Warden, et al., Respondents. / Petitioner, a state prisoner proceeding pro se, has filed a timely notice of appeal of this court's March 19, 2010 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 VICTOR SAMUEL DAVIS, Petitioner, No. CIV S-08-1007 FCD 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. For the reasons set forth in the magistrate judge's Findings and Recommendations filed on February 12, 2010, petitioner has not made a substantial showing of the denial of a constitutional right in any of his claims. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability shall not issue in the present action. DATED: April 27, 2010.

_______________________________________ 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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