Cortez v. Kane

Filing 35

ORDER DENYING CERTIFICATE OF APPEALABILITY, RESOLVING PENDING MOTIONS AND INSTRUCTIONS TO THE CLERK. Signed by Judge Jeffrey S. White on 10/20/08. (jjo, COURT STAFF) (Filed on 10/20/2008) Modified on 10/20/2008 (jjo, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

JAVIER CORTEZ,

Petitioner, vs.
A. P. KANE, Warden, Respondent.

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No. C 05-2478 JSW (PR)

ORDER DENYING CERTIFICATE OF APPEALABILITY, RESOLVING PENDING MOTIONS AND INSTRUCTIONS TO THE CLERK (Docket Nos. 31, 32, 33, 34)

Petitioner filed a pro se petition for a writ of habeas corpus challenging the constitutionality of his state conviction under 28 U.S.C. § 2254. Following briefing, this Court denied Petitioner's application for a writ of habeas corpus on the merits. Petitioner has filed a notice of appeal which the Court construes as a motion for a certificate of appealability ("COA") (docket no. 31). See United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997) (citing 28 U.S.C. § 2253(c)(3). Upon the filing of a notice of appeal or a request for a COA, the district court shall indicate which specific issue or issues satisfy the standard for issuing a certificate, or state its reasons why a certificate should not be granted. Id. A judge shall grant a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Petitioner has not shown that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a certificate of

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appealability is DENIED.
Petitioner has filed an applications for leave to proceed in forma pauperis on appeal. See Fed. R. App. P. 24(a). 28 U.S.C. 1915(a)(3) provides that an appeal may not be taken in forma pauperis if the district court certifies that it is taken in bad faith. Although petitioner did not show that reasonable jurists would disagree on the merits of his petition so as to warrant issuance of a certificate of appealability, the court does not find that the appeal is taken in bad faith. Accordingly, the motion to proceed IFP on appeal is GRANTED. The Clerk shall serve notice of this order to the Court of Appeals, as well as to the parties. See Fed. R. App. P. 24(a).

Petitioner has also requested that the record on appeal be sent to the Ninth Circuit. Petitioner's request is GRANTED (docket no. 33). Petitioner's request for an update on this case is GRANTED (docket no. 34) and the Clerk shall provide Petitioner with a copy of the docket sheet along with this order. The Clerk of Court shall forward this order, along with the case file, to the United States Court of Appeals for the Ninth Circuit. Petitioner may also seek a certificate of appealability from that court. See Asrar, 116 F.3d at 1270.
IT IS SO ORDERED. DATED: October 20, 2008 JEFFREY S. WHITE United States District Judge

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v. KANE et al, Defendant. CORTEZ, Plaintiff,

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV05-02478 JSW CERTIFICATE OF SERVICE

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on October 20, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Javier Cortez P.O. Box 689 D44595 G/W # 246-L Soledad, CA 93960-0689 Dated: October 20, 2008 Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk