Garcia v. Martel

Filing 44

ORDER signed by Judge Garland E. Burrell, Jr on 5/18/10 ORDERING that Petitioner's MOTION for Certificate of Appealability 43 is DENIED. (Mena-Sanchez, L)

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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. WARDEN MICHAEL MARTEL, Respondent. / 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 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). Petitioner challenges this court's rulings that his action was time-barred and that his claim of actual innocence did not meet the requirements for overcoming this statute of limitations bar and convening an evidentiary hearing. See Magistrate Judge's Findings and 1 ORDER DANNY GARCIA, Petitioner, No. 2:08-cv-3099 GEB KJN P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 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 Recommendations, filed February 25, 2010 (Docket No. 37), and Order Adopting Findings and Recommendations, filed March 31, 2010 (Docket No. 39). Petitioner has therefore not made a substantial showing of the denial of a constitutional right. Accordingly, petitioner's motion for a certificate of appealability (Dkt. No. 43) is denied. SO ORDERED. Dated: May 18, 2010 GARLAND E. BURRELL, JR. United States District Judge 2

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