Kelley v. Spearman

Filing 23

ORDER signed by District Judge Morrison C. England, Jr. on 6/11/2019 in RESPONSE to 21 USCA Order. Accordingly, a certificate of appealability should not issue in this action. (cc: 9th Circuit)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TSHOMBE M. KELLEY,

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Petitioner,

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No. 2:17-cv-01529 MCE GGH P

v.

ORDER

M.E. SPEARMAN,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this

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court’s April 23, 2019 dismissal of his application for a writ of habeas corpus for failure to

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exhaust state remedies before the Ninth Circuit Court of Appeals. ECF No. 18. On May 28,

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2019, the court of appeals remanded this case to the district court for the limited purpose of

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granting or denying a certificate of appealiabilty. See ECF No. 21. Before petitioner can appeal

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

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P. 22(b).

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A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has

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

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court must either issue a certificate of appealability indicating which issues satisfy the required

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showing or must state the reasons why such a certificate should not issue. 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, at least, [1] that jurists of reason would

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find it debatable whether the petition states a valid claim for the denial of a constitutional right,

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and [2] that jurists of reason would find it debatable whether the district court was correct in its

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procedural ruling.” Petrocelli v. Angelone, 248 F.3d 877, 883-84 (9th Cir. 2001) (citing Slack v.

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McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1600-01, 1604 (2000)).

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

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satisfied the first 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 this court

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was correct in its procedural ruling. Accordingly, a certificate of appealability should not issue in

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this action.

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IT IS SO ORDERED.
Dated: June 11, 2019

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