Stewart v. Martel, et al

Filing 24

ORDER signed by Senior Judge Lawrence K. Karlton on 04/19/10; a Certificate of Appealability SHALL NOT ISSUE 23 Motion for Certificate of Appealability. (Williams, D)

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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. M. MARTEL, et al., Respondents. / Petitioner, a state prisoner proceeding without counsel, has filed a notice of appeal of this court's dismissal of his application for a writ of habeas corpus, and thus moves for a certificate of appealability. 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 state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). This court properly dismissed as time-barred the instant petition for writ of habeas corpus. Petitioner failed to establish either extraordinary circumstances or due diligence warranting equitable tolling for the subject eleven-year period. See Magistrate Judge's Findings 1 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA CHRISTOPHER ANDREW STEWART, Petitioner, No. 2:08-cv-1477 LKK KJN P 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 and Recommendations, filed February 19, 2010 (Docket No. 18), and Order Adopting Findings and Recommendations, filed March 16, 2010 (Docket No. 20). Petitioner has therefore not made a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability shall not issue. SO ORDERED. DATED: April 19, 2010. 2

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