Pina v. Uribe

Filing 29

ORDER denying Certificate of Appealability. The Court previously denied a certificate of appealability. (See Doc. No. 24 .) The Court will alternatively consider Petitioner's current 27 motion as a motion for reconsideration of that denial. The Court has carefully reviewed Petitioner's original petition, this motion, and other related papers. From that careful review, the Court sees no good grounds for issuing a certificate of appealability in light of the controlling legal stand ards. Because Petitioner has not made a "substantial showing of a denial of a constitutional right," the Court declines to issue a certificate of appealability. Signed by Judge Marilyn L. Huff on 4/22/2011. (USCA Case No. 11-55582. Order electronically transmitted to US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JOSE ALFREDO PINA,

CASE NO. 10-CV-278 H (BGS)
Plaintiff,

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ORDER DENYING
CERTIFICATE OF
APPEALABILITY

vs.
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DOMINGO URIBE, JR., Warden,

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Defendant.

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On February 3, 2010, Petitioner Jose Alfredo Pina (“Pina”) filed a petition to writ of

17 habeas corpus. (Doc. No. 1.) On March 4, 2011, the Court issued an order denying
18 Petitioner’s writ of habeas corpus and denying a certificate of appealability. (Doc. No. 24.)
19 On April 6, 2011, Petitioner Pina filed an appeal to the Ninth Circuit Court of Appeals. (Doc.
20 nos. 26, 28.) On April 6, 2011, Petitioner Pina also filed a motion for a certificate of
21 appealability. (Doc. No. 27.)
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According to the Federal Rules of Appellate Procedure, a petitioner may not seek an

23 appeal of a claim arising out of state court detention unless the petitioner obtains a certificate
24 of appealability from either the district judge or a circuit judge under 28 U.S.C. § 2253. See
25 Fed. R. App. P. 22(b). Section 2253 states that a certificate of appealability may only issue if
26 the petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C.
27 § 2253(c)(1). Where, as here, the district court has rejected the petitioner’s constitutional
28 claims on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the
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10cv278

1 district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
2 McDaniel, 529 U.S. 473, 483-84 (2000).
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The Court previously denied a certificate of appealability. (See Doc. No. 24.) The

4 Court will alternatively consider Petitioner’s current motion as a motion for reconsideration
5 of that denial. The Court has carefully reviewed Petitioner’s original petition, this motion, and
6 other related papers. From that careful review, the Court sees no good grounds for issuing a
7 certificate of appealability in light of the controlling legal standards. Because Petitioner has
8 not made a “substantial showing of a denial of a constitutional right,” Slack, 529 U.S. at 4839 84, the Court declines to issue a certificate of appealability.
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IT IS SO ORDERED.

11 DATED: April 22, 2011
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______________________________

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MARILYN L. HUFF, District Judge
UNITED STATES DISTRICT COURT

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10cv278