Downs v. California Attorney General

Filing 15

ORDER signed by Judge Frank C. Damrell, Jr on 9/3/2009 ORDERING that a certificate of appealability is denied in the present action. (Matson, R)

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. CALIFORNIA ATTORNEY GENERAL, Respondent. / Petitioner, a state prisoner proceeding pro se has filed a notice of appeal of this Court's June 23, 2009, dismissal of his application for a writ of habeas corpus. At screening, the Court dismissed the petition as duplicative as petitioner had filed a petition containing virtually identical allegations on the same date in the Fresno Division. That division is more appropriate as petitioner is incarcerated in Kings County, part of the Fresno Division and the action concerned denial of parole. 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). 1 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA GREGORY DOWNS, Petitioner, No. CIV S-09-1104 FCD GGH P

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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 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 In this case, the Court finds that reasonable jurists would not find the Court's determination that the petition was duplicative as debatable or incorrect. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is denied in the present action. DATED: September 3, 2009.
_______________________________________ FRANK C. DAMRELL, 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

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