Mathis v. Uribe et al

Filing 21

ORDER denying Certificate of Appealability re 20 Notice of Appeal. A certificate of appealability should not issue in this action. Signed by Judge Michael M. Anello on 11/9/2009. (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 17 18 19 20 21 22 23 24 25 26 27 28 vs. DOMINGO URIBE, JR., Warden, Defendant. Petitioner, Bennie Lee Mathis, a state Petitioner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his May 21, 1993, sentencing in San Diego Superior Court, Case No. 14943, for second degree murder and voluntary manslaughter, to which Petitioner entered a plea of no contest. Respondents moved to dismiss the Petition as procedurally time-barred pursuant to 28 U.S.C. § 2244(d). Magistrate Judge Anthony J. Battaglia issued a Report and Recommendation on September 9, 2009, recommending that this Court dismiss the petition as untimely [Doc. No. 13]. After Petitioner filed Objections to the Report and Recommendation [Doc. Nos. 14 & 16], the Court adopted the Report and Recommendation and dismissed the petition for failure to comply with 28 U.S.C. § 2244(d) [Doc. No. 17]. Petitioner has timely filed a notice of appeal of the Court's denial of his application for a writ of habeas corpus [Doc. No. 20]. Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). /// -1BENNIE LEE MATHIS, Plaintiff, ORDER RE: CERTIFICATE OF APPEALABILITY CASE NO. 09cv230-MMA(AJB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

09cv230

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A petitioner may not seek an appeal of a claim arising out of state court detention unless the petitioner first obtains a certificate of appealability from a district judge or a circuit judge under 28 U.S.C. § 2253. Fed. R. App. P. 22(b). Under 28 U.S.C. § 2253(c)(1), a certificate of appealability will issue only if the petitioner makes a substantial showing of the denial of a constitutional right. For the reasons set forth in Judge Battaglia's Report and Recommendation, Petitioner has not made a substantial showing of the denial of a constitutional right. Moreover, when a district court has denied a petition on procedural grounds, a certificate of appealability should issue if the petitioner shows both that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). A court need not address both showings if one showing is defective. Slack, 529 U.S. at 485. The Court finds that reasonable jurists would not debate whether Petitioner's petition is barred by the applicable statute of limitations. Accordingly, a certificate of appealability should not issue in this action. IT IS SO ORDERED. DATED: November 9, 2009 Hon. Michael M. Anello United States District Judge

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09cv230