Cudgo, Jr. v. Lea

Filing 27

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/12/15 ORDERING that a certificate of appealability will 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

MACK CUDGO, JR.,

12

No. 2:14-cv-0691 CKD P

Petitioner,

13

v.

14

M. LEA,

15

ORDER

Respondent.

16
Petitioner, a state prisoner proceeding pro se, has appealed the February 12, 2015

17
18

dismissal of his petition for untimeliness. As the order of dismissal did not address whether a

19

certificate of appealability should issue, the court does so here.1
A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has

20
21

made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

22

Where the petition was dismissed on procedural grounds, a certificate of appealability “should

23

issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the

24

district court was correct in its procedural ruling’; and (2) ‘that jurists of reason would find it

25

debatable whether the petition states a valid claim of the denial of a constitutional right.’” Morris

26

v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484

27
28

1

Petitioner has consented to this court’s jurisdiction to conduct all proceedings in this action.
(ECF No. 13.)
1

1

(2000)).

2

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

3

requirement for issuance of a certificate of appealability in this case. Accordingly, a certificate of

4

appealability will not issue in this action.

5
6

IT IS SO ORDERED.
Dated: March 12, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

7
8
9
10
11
12
13
14

2 / cudg0691.coa.pro

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