Jones v. Woodford

Filing 9

ORDER denying 8 Petitioner's Application for Certificate of Appealability. The Court concludes that a certificate of appealability is unwarranted because Plaintiff has not made a substantial showing of the denial of a constitutional right. Ac cordingly, the Court DENIES Petitioner's request for a certificate of appealability. Signed by Judge Michael M. Anello on 6/16/2010. (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 v. JEANNE WOODFORD, Warden, Respondent. EDWARD JONES, Petitioner, Civil No. 10cv1015-MMA (CAB) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

ORDER DENYING PETITIONER'S APPLICATION FOR CERTIFICATE OF APPEALABILITY [Doc. No. 8]

On May 11, 2010, Petitioner, Edward Jones, a state prisoner proceeding pro se, submitted a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his November 8, 2000, San Diego Superior Court conviction in San Diego Superior Court Case No. SCD147533. (Doc. No. 1.) On May 18, 2010, the Court issued an Order summarily dismissing the Petition on grounds that it was a successive petition filed without permission of the Ninth Circuit Court of Appeals pursuant to 28 U.S.C. § 2244(b)(3)(A). On June 2, 2010, the Court issued an Order denying Petitioner's motion to set aside the Court's May 18, 2010 Order pursuant to Federal Rule of Civil Procedure 60(b)(6). (Doc. No. 6.) Before Petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). On June 10, 2010, Petitioner timely filed a notice of appeal with an application for a Certificate of Appealability in response to the Court's June 2, 2010 Order. (Doc. No. 8.) A petitioner may not seek an appeal of a claim arising out of a state court detention unless the petitioner first obtains a certificate of appealability from a district judge or a circuit judge under 28 -110cv1015

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

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. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, the Court has considered whether a certificate of appealability is warranted in this case. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484­85 (2000). The Court concludes that a certificate of appealability is unwarranted because Plaintiff has not made a substantial showing of the denial of a constitutional right. Accordingly, the Court DENIES Petitioner's request for a certificate of appealability. IT IS SO ORDERED. DATED: June 16, 2010

Hon. Michael M. Anello United States District Judge

-2-

10cv1015