Brown v. McDonald

Filing 41

ORDER signed by Magistrate Judge Dale A. Drozd on 08/24/12 denying 39 Motion for Certificate of Appealability. The court's order filed on 08/21/12 40 is vacated. (Plummer, M)(cc: USCA, 9th circuit) Modified on 8/27/2012 (Plummer, M).

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

PHILLIP L. BROWN,

11
12
13

Petitioner,

No. 2:10-cv-01720-LKK-DAD P

vs.
MIKE McDONALD,

14
Respondent.
15

ORDER
/

16

Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of

17

this court's July 9, 2012 dismissal of his petition for a writ of habeas corpus on the grounds that

18

the petition was filed beyond the governing one-year statute of limitations. Before petitioner can

19

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

20

P. 22(b).1

21
22

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.

23
24
25
26

1

On August 21, 2012, the undersigned issued an order in error addressing petitioner’s
application for a certificate of appealability. Therein the undersigned erroneously characterized
the underlying action as a civil rights action and advised petitioner that a certificate of
appealability was not necessary in order to pursue an appeal in such an action. That order was
obviously issued in error in this federal habeas action and is hereby vacated.
1

1

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

2

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

3

Fed. R. App. P. 22(b).

4

Where, as here, the petition was dismissed on procedural grounds, a certificate of

5

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

6

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

7

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

8

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

9

McDaniel, 529 U.S. 473, 484 (2000)).

10

After careful review of the entire record herein, this court finds that petitioner has

11

not satisfied the first requirement for issuance of a certificate of appealability in this case.

12

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

13

petition was filed beyond the one-year statute of limitations. Instead of addressing what issues

14

are debatable as to the statute of limitations, petitioner presents arguments on the merits of his

15

claims for habeas relief. Accordingly, a certificate of appealability should not issue in this

16

action.

17

Accordingly, IT IS ORDERED that:

18

1. Petitioner’s July 30, 2012 application for a certificate of appealability (Doc.

19

No. 39) is denied; and

20
21

2. The court’s order filed on August 21, 2012 (Doc. No. 40) is vacated.
DATED: August 24, 2012.

22
23
24

DAD:4
brow1720.coa

25
26
2