Michel v. Walker

Filing 13

ORDER DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Jeffrey S. White on 5/26/09. (jjo, COURT STAFF) (Filed on 5/26/2009)

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA
ALEJANDRO F. MICHEL,

Petitioner,

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No. C 08-1724 JSW (PR) ORDER DENYING CERTIFICATE OF APPEALABILITY (Docket no. 12)

Petitioner, a prisoner of the State of California, filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 . In an order dated March 17, 2009, this Court dismissed the petition as untimely (docket no. 10). Petitioner has filed a notice of appeal and a motion seeking a certificate of appealability (docket no. 10). 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). "Determining whether a COA should issue where the petition was dismissed on procedural grounds has two components, one directed at the underlying constitutional claims and one directed at the district court's procedural holding." Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. at 484; see James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000). As each of these components is a

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"threshold inquiry," the federal court "may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments." Slack, 529 U.S. at 485. Supreme Court jurisprudence "allows and encourages" federal courts to first resolve the procedural issue. See id. Petitioner has not established that "jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. at 484. Accordingly, the request for a certificate of appealability is DENIED (docket no. 12). The Clerk of Court shall forward this order, along with the case file, to the United States Court of Appeals for the Ninth Circuit. United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). IT IS SO ORDERED. DATED: May 26, 2009 JEFFREY S. WHITE United States District Judge

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Dated: May 26, 2009 Alejandro F. Michel T86169 CSP-Sacramento P.O. Box 290066 Represa, CA 95671 v. ALEJANDRO F. MICHEL, Plaintiff,

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV08-01724 JSW CERTIFICATE OF SERVICE

WILLIAM T. SULLIVAN et al, Defendant. /

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 May 26, 2009, 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.

Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk