Cruz v. Clark

Filing 21

ORDER signed by Judge John A. Mendez on 7/20/09 ORDERING that a certificate of appealability is DENIED. (Gaydosh, J)

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 Petitioner's motion is titled "Motion for Certificate of Probable Cause", but the court will construe it as a motion for a certificate of appealability. 1
1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA RICHARD ANTHONY CRUZ, Petitioner, vs. KEN CLARK, et al., Respondents. / Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's May 21, 2009, dismissal of his application for a writ of habeas corpus on grounds that the action was barred by the statute of limitations . Before petitioner can appeal this decision, a certificate of appealability must issue.1 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 ORDER No. CIV S-08-1604 JAM GGH 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

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, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).2 Petitioner has failed to make a substantial showing of the denial of a constitutional right. Petitioner's motion lists the claims in his habeas petition and in one conclusory statement contends that his delay in filing was justified. Petitioner has not addressed the reasons why his petition was dismissed for violating the statute of limitations. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is denied. DATED: July 20, 2009

/s/ John A. Mendez UNITED STATES DISTRICT JUDGE

cruz1604.coa

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

2