Clemans v. Yates

Filing 21

ORDER denying 20 Petition for Certificate of Appealability. The Court concludes that Petitioner has failed to make a substantial showing of a denial of a constitutional right. The Court DENIES a Certificate of Appealability. Signed by Judge Marilyn L. Huff on 7/17/2009. (Order electronically transmitted to 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 CHARLES TWAIN CLEMANS, JR., vs. JAMES A. YATES, Warden, Respondent. Petitioner, CASE NO. 08-CV-1851-H ORDER DENYING CERTIFICATE OF APPEALABILITY

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

On November 10, 2008, Charles Twain Clemans, Jr. ("Petitioner"), a California state

17 prisoner proceeding pro se, filed a First Amended Petition for writ of habeas corpus pursuant 18 to 28 U.S.C. § 2254. (Doc. No. 5.) On December 19, 2008, Respondent moved to dismiss the 19 petition for failure to comply with the statute of limitations in 28 U.S.C. § 2244(d)(1). (Doc. 20 No. 9.) The Magistrate Judge issued a Report and Recommendation on February 17, 2009, 21 recommending that this Court dismiss the petition as untimely. (Doc. No. 13.) After Petitioner 22 filed an Objection to the Report and Recommendation (Doc. No. 16), the Court adopted the 23 Report and Recommendation and dismissed the petition for failure to comply with 28 U.S.C. 24 § 2244(d)(1) (Doc. No. 17). Petitioner then filed an application in this Court for a Certificate 25 of Appealability on July 13, 2009. (Doc. No. 20.) 26 28 /// -1-

For the reasons below, the Court DENIES Petitioner's Application for a Certificate of

27 Appealability.

08-CV-1851-H

1 A. 2

Certificate of Appealability. A petitioner may not seek an appeal of a claim arising out of state court detention unless

3 the petitioner first obtains a certificate of appealability from a district judge or a circuit judge 4 under 28 U.S.C. § 2253. Fed. R. App. P. 22(b). Under 28 U.S.C. § 2253(c)(1), a certificate of 5 appealability will issue only if the petitioner makes a substantial showing of the denial of a 6 constitutional right. Moreover, when a district court has denied a petition on procedural 7 grounds, a certificate of appealability should issue if the petitioner shows both that jurists of 8 reason would find it debatable whether the petition states a valid claim of the denial of a 9 constitutional right and that jurists of reason would find it debatable whether the district court 10 was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). A court 11 need not address both showings if one showing is defective. Slack, 529 U.S. at 485. The 12 statute of limitations in 28 U.S.C. § 2244(d)(1) requires that federal habeas review occur within 13 one-year of the conclusion of a state's direct review. Even if all of Petitioner's arguments about 14 his state collateral review are correct, the petition is still time-barred because Petitioner's 15 collateral review did not begin until almost nine years after the completion of direct review, and 16 therefore no reasonable jurist could find that the federal petition was timely filed. 17

After reviewing the Court's order (Doc. No. 17), and considering the points raised in the

18 application for a certificate of appealability (Doc. No. 20), the Court concludes that Petitioner 19 has failed to make a substantial showing of a denial of a constitutional right. 20 21

Conclusion For the reasons stated above, the Court DENIES a Certificate of Appealability.

22 IT IS SO ORDERED. 23 DATED: 24 25 26 COPIES TO: All parties of record. 27 28 -2July 17, 2009

_______________________________
MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT

08-CV-1851-H