Jose Perez v. Lizarrago

Filing 12

ORDER signed by Judge John A. Mendez on 6/9/2015 ORDERING that petitioner's 11 motion for reconsideration is DENIED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE PEREZ,

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Petitioner,

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No. 2:14-cv-1357 JAM DAD P

v.

ORDER

JOE A. LIZARRAGO,

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Respondents.

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Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. On September 29, 2014, the assigned Magistrate Judge issued

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findings and recommendations, recommending that petitioner’s application for a writ of habeas

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corpus be dismissed without prejudice as second or successive. (Doc. No. 8) On November 10,

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2014, the court adopted the findings and recommendations in full and declined to issue a

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certificate of appealability. (Doc. No. 9) The court entered judgment on the same day. (Doc.

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No. 10) Pending before the court is petitioner’s motion for reconsideration.

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In his motion for reconsideration, petitioner asks the court to reconsider its decision to not

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issue a certificate of appealability in this case. Petitioner contends that the court stated in its order

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that he had not filed objections to the findings and recommendations addressing whether a

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certificate of appealability should issue. Petitioner contends, however, that he did in fact file a

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request for a certificate of appealability. He has attached to his motion a copy of his mail log to

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demonstrate he timely filed his request. (Pet’r’s Mot. for Recons. at 1 & Attach.)

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Petitioner’s motion fails to show that he is entitled to relief. As an initial matter,

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according to the mail log petitioner attached to his motion for reconsideration, petitioner did not

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send his request for certificability to this court. Rather, he sent it to the Ninth Circuit Court of

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Appeals in San Francisco. In any event, a certificate of appealability should be granted for any

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issue that petitioner can demonstrate is “‘debatable among jurists of reason,’” could be resolved

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differently by a different court, or is “‘adequate to deserve encouragement to proceed further.’”

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Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S.

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880, 893 (1983)). Petitioner has made no such showing in his motion for reconsideration, and

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therefore, he is not entitled to relief.

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Accordingly, IT IS HEREBY ORDERED that petitioner’s motion for reconsideration

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(Doc. No. 11) is denied.

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DATED: June 9, 2015

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/s/ John A. Mendez_________________________

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UNITED STATES DISTRICT COURT JUDGE

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