Tran v. Malfi

Filing 27

ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY re 26 . Signed by Judge Jeremy Fogel on 10/15/09. (dlm, COURT STAFF) (Filed on 10/20/2009)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA CHU TRAN, Petitioner, vs. JAMES WALKER, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) ) No. C 06-06374 JF (PR) ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY (Docket No. 26) On September 19, 2008, the Court denied this pro se petition for writ of habeas corpus on the merits and entered judgment in favor of Respondent. On April 17, 2009, Petitioner filed a "belated notice of appeal" and a request for a certificate of appealability, after his motion for reconsideration was denied on January 15, 2009. (Docket No. 14.). 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 Order Denying Request for COA P:\PRO-SE\SJ.JF\HC.06\Tran374_coa.wpd 1 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 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, 529 U.S. 473, 484 (2000). The Court denied the instant habeas petition after careful consideration of the merits. The Court found no violation of Petitioner's federal constitutional rights in the underlying state court proceedings. Petitioner has failed to demonstrate that jurists of reason would find it debatable whether this Court was correct in its ruling. Accordingly, Petitioner's request for a certificate of appealability (Docket No. 26) is DENIED. The Clerk shall forward this order, along with the case file, to the United States Court of Appeals for the Ninth Circuit, from which Petitioner may also seek a certificate of appealability. See Fed. R. App. P. 22(b); see United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). This order terminates Docket No. 26. IT IS SO ORDERED. DATED: 10/15/09 JEREMY FOGEL United States District Judge Order Denying Request for COA P:\PRO-SE\SJ.JF\HC.06\Tran374_coa.wpd 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA CHU TRAN, Petitioner, v. JAMES WALKER, Warden, Respondent. / Case Number: CV06-06374 JF CERTIFICATE OF SERVICE I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 10/20/09 , I SERVED a true and correct copy(ies) of the That on 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. Chu Tran V03081 CA State Prison-Folsom P.O. Box 290066 A7-123 Represa, CA 95671-0066 Dated: 10/20/09 Richard W. Wieking, Clerk

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