Payne v. Virga
Filing
17
ORDER signed by Judge Garland E. Burrell, Jr on 4/6/11: Certificate of appealability is not issued in the present action. (Kaminski, H)
<![CDATA[
(HC) Payne v. Virga
Doc. 17
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 1
Dockets.Justia.com
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA GERALD J. PAYNE, Petitioner, vs. TIMOTHY VIRGA, Respondent. / Petitioner, a state prisoner proceeding pro se has timely filed a notice of appeal of this court's March 14, 2011, dismissal at screening 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 certificate of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. § 2253(c)(3). 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, ORDER No. CIV S-10-3016 GEB GGH P
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
290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).1 Petitioner has failed to make a substantial showing of the denial of a constitutional right in the this case. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is not issued in the present action.
Dated: April 6, 2011
GARLAND E. BURRELL, 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
1
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
