Elroy v. Knowles

Filing 10

ORDER signed by Magistrate Judge Gregory G. Hollows on 2/3/09 ORDERING that a CERTIFICATE OF APPEALABILITY re 9 Notice of Appeal to not be issued in this action. (Yin, 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. MIKE KNOWLES, Respondents. / Petitioner, a state prisoner proceeding pro se, has filed a late notice of appeal of this court's October 30, 2008, dismissal of his application for a writ of habeas corpus. Petitioner filed this notice of appeal on January 12, 2009. 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 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 LAWRENCE JASON ELROY, Petitioner, No. CIV S-08-1584 GGH P

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290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).1 The timely filing of a notice of appeal is a jurisdictional requirement. Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984). Here, the time limit for filing a notice of appeal following entry of judgment is thirty days. See Fed. R. App. P. 4(a). Petitioner's notice of appeal in this action was filed more than thirty days after entry of judgment. For the reasons set forth in the magistrate judge's October 30, 2008, order, petitioner has not made a substantial showing of the denial of a constitutional right. In addition, the notice of appeal was not timely filed. Accordingly, a certificate of appealability should not issue in this action. IT IS HEREBY ORDERED. DATED: February 3, 2009 /s/ Gregory G. Hollows

13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 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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