Butte v. Allison

Filing 51

ORDER signed by Judge Garland E. Burrell, Jr on 4/26/12 ORDERING that a Certificate of Appealability should not issue in this Action re 50 . (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAYMOND HAROLD BUTTE, SR.,

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Petitioner,

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No. CIV S-11-0510 GEB DAD P

vs.
K. ALLISON,

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

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this court's March 30, 2012 dismissal of his application for a writ of habeas corpus on the

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grounds that it was filed beyond the one-year statute of limitations. Before petitioner can appeal

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

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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)).

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

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not satisfied the 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 whether

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petitioner’s habeas petition is untimely and whether petitioner is entitled to equitable tolling.

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Accordingly, a certificate of appealability should not issue in this action.

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IT IS SO ORDERED.
Dated: April 26, 2012

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GARLAND E. BURRELL, JR.
United States District Judge

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