Hearne v. Cate

Filing 24

ORDER signed by Judge Garland E. Burrell, Jr on 6/29/10 DENYING petitioner's 23 Motion for Certificate of Appealability. (Owen, K)

(HC) Hearne v. Cate

Doc. 24

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. / Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's dismissal of petitioner's petition for a writ of habeas corpus for failure to state a cognizable claim for federal habeas relief. 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 ///// 1
Dockets.Justia.com

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA WILLIE C. HEARNE, Petitioner, No. CIV S-09-0725 GEB DAD P

ORDER

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

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)).1 After careful review of the entire record herein, this court finds that petitioner has not shown that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Therefore, the court will deny petitioner's motion for a certificate of appealability. Petitioner may file a motion for a certificate of appealability in the Ninth Circuit Court of Appeals, pursuant to Federal Rule of Appellate Procedure 22(b). Accordingly, IT IS HEREBY ORDERED that petitioner's April 26, 2010 motion for a certificate of appealability is denied. Dated: June 29, 2010

GARLAND E. BURRELL, JR. United States District Judge

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

1