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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 RAYMOND HAROLD BUTTE, SR., 11 Petitioner, 12 13 No. CIV S-11-0510 GEB DAD P vs. K. ALLISON, 14 Respondent. 15 ORDER / 16 Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of 17 this court's March 30, 2012 dismissal of his application for a writ of habeas corpus on the 18 grounds that it was filed beyond the one-year statute of limitations. Before petitioner can appeal 19 this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 20 22(b). 21 A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the 22 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 23 § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues 24 satisfy the required showing or must state the reasons why such a certificate should not issue. 25 Fed. R. App. P. 22(b). 26 ///// 1 1 Where, as here, the petition was dismissed on procedural grounds, a certificate of 2 appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it 3 debatable whether the district court was correct in its procedural ruling’; and (2) ‘that jurists of 4 reason would find it debatable whether the petition states a valid claim of the denial of a 5 constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. 6 McDaniel, 529 U.S. 473, 484 (2000)). 7 After careful review of the entire record herein, this court finds that petitioner has 8 not satisfied the requirement for issuance of a certificate of appealability in this case. 9 Specifically, there is no showing that jurists of reason would find it debatable whether 10 petitioner’s habeas petition is untimely and whether petitioner is entitled to equitable tolling. 11 Accordingly, a certificate of appealability should not issue in this action. 12 13 IT IS SO ORDERED. Dated: April 26, 2012 14 15 16 GARLAND E. BURRELL, JR. United States District Judge 17 18 19 20 21 22 23 24 25 26 2

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