McNeely v. County of Sacramento et al

Filing 68

ORDER signed by Judge William B. Shubb on 8/13/10 ORDERING that a certificate of appealability should not issue in this action. (Becknal, 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. S. M. SALINAS, Warden, Respondent. APPEALABILITY _________________________________/ ORDER DENYING CERTIFICATE OF DOCK McNEELY, Petitioner, No. CIV S-09-2520 WBS GGH P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Petitioner, a state prisoner proceeding pro se, has filed a notice of appeal of his own voluntary dismissal of his application for a writ of habeas corpus. 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 court finds that petitioner has not made a substantial showing of the denial of a constitutional right. When the court declines to issue a certificate of appealability, it must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). Here, plaintiff voluntarily dismissed his petition and has presented no valid reason why he should be allowed to revoke or withdraw his dismissal. Accordingly, a certificate of appealability should not issue in 1

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this action. IT IS SO ORDERED DATED: August 13, 2010

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