Kunitz v. Clark

Filing 33

ORDER signed by Judge William B. Shubb on 2/3/2010 re 32 ORDERING that this court declines to issue a certificate of appealability.(Duong, D)

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. MATTHEW CATE, Respondent. / ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA MAXIMILLIAN KUNITZ, SR., Petitioner, No. CV 08-3024-WBS-JFM (HC)

Petitioner, a state prisoner proceeding through counsel, has timely filed a notice of appeal of this court's November 20, 2009 dismissal of his application for a writ of habeas corpus as barred by the statute of limitations. Before petitioner can appeal this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c) and 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 must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). Where, as here, the petition was dismissed on procedural grounds, a certificate of appealability "should issue if the prisoner can show: (1) `that jurists of reason would find it 1

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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 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. Specifically, there is no showing that jurists of reason would find it debatable whether this action is barred by the statute of limitations for the reasons set forth in the Magistrate Judge's Findings and Recommendations filed November 9, 2009. Accordingly, IT IS HEREBY ORDERED that this court declines to issue a certificate of appealability. DATED: February 3, 2010

UNITED STATES DISTRICT JUDGE
/kuni3024.coapro

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