Spencer v. Kirkland

Filing 18

ORDER DENYING CERTIFICATE OF APPEALABILITY AND MOTION FOR APPOINTMENT OF COUNSEL by Judge Phyllis J. Hamilton denying 17 Motion for Certificate of Appealability (Attachments: # 1 Certificate of Service) (nah, COURT STAFF) (Filed on 5/12/2009)

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1 2 3 4 5 6 7 8 9 10 vs. RICHARD KIRKLAND, Warden, Respondent. / MICHAEL E. SPENCER, Petitioner, No. C 05-4338 PJH (PR) ORDER DENYING CERTIFICATE OF APPEALABILITY AND MOTION FOR APPOINTMENT OF COUNSEL UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA United United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This is a habeas case under 28 U.S.C. 2254 filed pro se by a state prisoner. The court denied the petition in a ruling entered on March 30, 2009. Petitioner has filed a notice of appeal, a motion for a certificate of appealability, and a motion for appointment of counsel. A petitioner may not appeal a final order in a federal habeas corpus proceeding without first obtaining a certificate of appealability (formerly known as a certificate of probable cause to appeal). See 28 U.S.C. 2253(c); Fed. R. App. P. 22(b). A judge shall grant a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). The certificate must indicate which issues satisfy this standard. See id. 2253(c)(3). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 2253(c) is straightforward: the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000). For the reasons set out in the order denying the petition, jurists of reason would not find the result debatable or wrong. Petitioner's request for a certificate of appealability 1 2 3 4 5 6 7 8 9 10 (document number 17 on the docket) is DENIED. His motion for appointment of counsel, which also is contained in document 17, is DENIED without prejudice to renewing it before the Court of Appeals. The clerk shall transmit the file, including a copy of this order, to the Court of Appeals. See Fed. R.App.P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Petitioner may then ask the Court of Appeals to issue the certificate, see R.App.P. 22(b)(1), or if he does not, the notice of appeal will be construed as such a request, see R.App.P. 22(b)(2). IT IS SO ORDERED. Dated: May 12, 2009. PHYLLIS J. HAMILTON United States District Judge United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\PJH\HC.05\Spencer4338.COA.wpd 2

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