Marcus Eduardo Mendiola v. Jeanne Woodford

Filing 39

ORDER denying 34 Petitioner's Application for Certificate of Appealability. For the reasons set forth in the Report and Recommendation and the Court's March 29, 2010 order, Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability should not issue in this action and Petitioner's application is DENIED. Signed by Judge Michael M. Anello on 5/11/2010. (Order electronically transmitted to US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr). (Main Document 39 replaced on 5/11/2010 to attach Order with corrected case number only.) (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. JEANNE WOODFORD, Director of Corrections, et al., Defendant. Petitioner Marcos Eduardo Mendiola, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 [Doc. No. 1] challenging his state court convictions for first-degree murder with special circumstances and carjacking. Respondent filed an answer to the first amended petition [Doc. No. 12], and Petitioner filed a traverse [Doc. No. 18]. Subsequent to transfer from the Central District of California, the matter was referred to United States Magistrate Anthony J. Battaglia for preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3. On March 29, 2010, the undersigned adopted the Report and Recommendation, denied the petition, and determined that a certificate of appealability should not issue in this case. The Court concluded that Petitioner did not make a substantial showing of a the denial of a constitutional right and that reasonable jurists would not disagree. 28 U.S.C. § 2253; Fed. R. App. P. 22(b). Currently before the Court is Petitioner's application for a Certificate of Appealability, -109cv1442

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

MARCOS EDUARDO MENDIOLA, Plaintiff,

CASE NO. 09cv1442-MMA(AJB)

ORDER DENYING PETITIONER'S APPLICATION FOR CERTIFICATE OF APPEALABILITY [Doc. No. 34]

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received and filed subsequent to the Court's March 29, 2010 order declining to issue a certificate. Upon due consideration of Petitioner's present application, the Court finds no reason to amend its prior order. Therefore, for the reasons set forth in the Report and Recommendation and the Court's March 29, 2010 order, Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability should not issue in this action and Petitioner's application is DENIED. IT IS SO ORDERED. DATED: May 11, 2010 Hon. Michael M. Anello United States District Judge

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09cv1442