Diaz v. Cate et al

Filing 29

ORDER DENYING ISSUANCE OF A CERTIFICATE OF APPEALABILITY (Illston, Susan) (Filed on 5/1/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHARLES DIAZ,
Petitioner,

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No. C 08-4744 SI (PR)
ORDER DENYING ISSUANCE OF A
CERTIFICATE OF APPEALABILITY

v.
TOM FELKER, Warden,
Respondent.
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United States District Court
For the Northern District of California

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The Court denied the habeas petition filed in the above-titled action, declined to issue a

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certificate of appealability, and entered judgment in favor of respondent on August 30, 2010.

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On December 9, 2010, petitioner filed an untimely notice of appeal in the Ninth Circuit Court

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of Appeals. On January 28, 2011, the Ninth Circuit dismissed the appeal for lack of jurisdiction.

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The appellate court issued its mandate on February 3, 2011. On March 1, 2011, petitioner filed

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for a rehearing, which the Ninth Circuit denied on March 22, 2011.

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On April 15, 2011, petitioner asked this Court under Federal Rule of Civil Procedure 60

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to vacate its order denying the petition and the judgment, and re-enter them so as to permit him

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to file a timely notice of appeal. The Court found no basis for relief and denied the motion on

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January 18, 2012. Petitioner appealed this denial.

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The Court of Appeals has remanded the action to this Court for the limited purpose of

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granting or denying a certificate of appealability. This Court hereby denies a certificate of

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appealability on grounds that petitioner has not shown that “jurists of reason would find it

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debatable whether the petition states a valid claim of the denial of a constitutional right and that

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jurists of reason would find it debatable whether the district court was correct in its procedural

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ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Petitioner may seek a certificate of

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appealability from the Court of Appeals.

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IT IS SO ORDERED.
DATED: May 1, 2012
SUSAN ILLSTON
United States District Judge

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