Prasad v. Yates

Filing 34

ORDER signed by Judge Frank C. Damrell, Jr. on 1/6/2010 ORDERING 31 Motion for Certificate of Appealability is denied; and the Clerk is directed to send a copy of this order to the USCA for the Ninth Circuit. (Matson, R)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Petitioner, a state prisoner proceeding through counsel, has timely filed a notice 16 of appeal of this court's November 24, 2009 dismissal of his application for a writ of habeas 17 corpus as barred by the statute of limitations together with a motion for a certificate of 18 appealability pursuant to 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). 19 A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the 20 applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 21 § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues 22 satisfy the required showing or must state the reasons why such a certificate should not issue. 23 Fed. R. App. P. 22(b). 24 Where, as here, the petition was dismissed on procedural grounds, a certificate of 25 appealability "should issue if the prisoner can show: (1) `that jurists of reason would find it 26 1 vs. JAMES A. YATES, Warden, Respondent. / ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA REGINAL PRASAD, Petitioner, No. 2:09-cv-0980-FCD-JFM (HC)

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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 careful 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. Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner's December 8, 2009 motion for a certificate of appealability is denied; and 2. The Clerk of the Court is directed to send a copy of this order to the United States Court of Appeals for the Ninth Circuit. DATED:
January 6, 2010

/s/ Frank C. Damrell, Jr.

UNITED STATES DISTRICT JUDGE
/pras0980.coapro

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