DeLuna v. Scribner et al

Filing 28

ORDER signed by Judge William B. Shubb on 3/31/2010 ORDERING that a certificate of appealability should not issue in this action. (Engbretson, 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. LARRY E. SCRIBNER, et al., Respondents. / On February 4, 2010, the court granted respondents' motion to dismiss and dismissed petitioner's application for writ of habeas corpus. Petitioner requests a certificate of appealability under 28 U.S.C. § 2253(c). Where, as here, a habeas petition is dismissed on procedural grounds, a certificate of appealability "should issue if the prisoner can show: (1) `that jurists of reason would find it 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. 1 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA DWAYNE DELUNA, Petitioner, No. CIV S-08-1135 WBS KJM P

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Specifically, there is no showing that jurists of reason would find it debatable whether petitioner's habeas application is not successive under 28 U.S.C. § 2244. Accordingly, a certificate of appealability should not issue in this action. IT IS SO ORDERED. DATED: March 31, 2010

/delu1135.coa

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