Downey v. Clark et al

Filing 24

ORDER denying 23 Petitioner's Application for a Certificate of Appealability. The Court finds that reasonable jurists would agree that the California Court of Appeal's conclusions were neither contrary to nor an unreasonable application o f clearly established federal law. Accordingly, no certificate of appealability should issue in this case. Petitioner's motion is denied. Signed by Judge Janis L. Sammartino on 4/28/2009. (cc: US Court of Appeals). (All non-registered users served via U.S. Mail Service). (akr)

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 Petitioner Na'il Charles Downey, on May 23, 2007, filed the present petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On September 24, 2008, pursuant to 28 U.S.C. § 636(b)(1), Magistrate Judge Louisa S. Porter issued a Report and Recommendation ("R&R") advising that the Court deny the petition. (Doc. No. 8.) On January 23, 2009, Petitioner filed objections, (Doc. No. 17.) and, having considered those objections and the R&R, the Court adopted Magistrate Judge Porter's recommendation. (Doc. No. 20.) On April 23, 2009, Petitioner filed a notice of appeal (Doc. No. 22) and an application for a certificate of appealability. (Doc. No. 23.) A certificate of appealability is authorized "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack NA'IL CHARLES DOWNEY, vs. MATTHEW CATE, Respondent. Petitioner, CASE NO. 07-CV-942-JLS (POR) ORDER: DENYING PETITIONER'S APPLICATION FOR A CERTIFICATE OF APPEALABILITY (Doc. No. 23.)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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07cv942

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v. McDaniel, 529 U.S. 473, 484 (2000). The Court must either (1) grant the certificate of appealability indicating which issues satisfy the required showing or (2) state why a certificate should not issue. Fed. R. App. P. 22(b). The petition raised four legal issues, none of which merit a certificate of appealability. The Court finds that reasonable jurists would agree that the California Court of Appeal's conclusions were neither contrary to nor an unreasonable application of clearly established federal law. Accordingly, no certificate of appealability should issue in this case. Petitioner's motion is DENIED. IT IS SO ORDERED.

DATED: April 28, 2009 Honorable Janis L. Sammartino United States District Judge

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07cv942