Johnson v. Unknown

Filing 15

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/26/13 ORDERING that a certificate of appealability should not issue in this action. (Dillon, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

OSHAY L. JOHNSON,

12

Petitioner,

13
14

No. 2:13-cv-0878 CKD P

v.

ORDER

UNKNOWN,

15

Respondent.

16
17

Petitioner, a state prisoner proceeding pro se, has filed a motion for a certificate of

18

appealability as to the August 20, 2013 dismissal of his application for a writ of habeas corpus.1

19

(ECF No. 13.) A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

20

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

21

2253(c)(2). Where, as here, the petition was dismissed on procedural grounds, a certificate of

22

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

23

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

24

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

25

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

26

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

27
28

1

Petitioner has consented to this court’s jurisdiction pursuant to 28 U.S.C. § 636(c) and Local
Rule 302.
1

1

After review of the record herein, this court finds that petitioner has not satisfied the first

2

requirement for issuance of a certificate of appealability. Specifically, there is no showing that

3

jurists of reason would find it debatable whether the petition was successive. Accordingly, a

4

certificate of appealability should not issue in this action.

5
6

IT IS SO ORDERED.
Dated: November 26, 2013

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

7
8
9
10
11
12

2 / john0878.coa.pro

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2