Guerrero v. Yates

Filing 25

ORDER signed by Judge John A. Mendez on 05/26/11 ORDERING that the 24 Motion for Certificate of Appealability is DENIED and a COA should NOT issue in this action. (Benson, A.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EULALIO GUERRERO, II,

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Petitioner,

No. CIV S-10-905 JAM DAD P

vs.
JAMES A. YATES,

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Respondent.
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ORDER
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Petitioner, a state prisoner proceeding with counsel, has timely filed a notice of

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appeal of this court's April 4, 2011 dismissal of his application for a writ of habeas corpus. The

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court determined that the habeas petition was not filed before the expiration of the one-year

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statute of limitations and that petitioner was not entitled to equitable tolling. Before petitioner

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can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R.

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App. P. 22(b).

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A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

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applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

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§ 2253(c)(2). The court must either issue a certificate of appealability indicating which issues

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satisfy the required showing or must state the reasons why such a certificate should not issue.

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Fed. R. App. P. 22(b).
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Where, as here, the petition was dismissed on procedural grounds, a certificate of

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appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it

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debatable whether the district court was correct in its procedural ruling’; and (2) ‘that jurists of

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reason would find it debatable whether the petition states a valid claim of the denial of a

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constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v.

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McDaniel, 529 U.S. 473, 484 (2000)), rev’d in part on other grounds by 273 F.3d 826 (9th Cir.

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2001).

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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.

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Specifically, there is no showing that jurists of reason would find it debatable as to whether

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petitioner is entitled to equitable tolling. Accordingly, a certificate of appealability should not

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issue in this action.

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IT IS SO ORDERED.
DATED: May 26, 2011

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/s/ John A. Mendez
UNITED STATES DISTRICT JUDGE

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