Nelson v. Clark

Filing 38

ORDER denying 36 Motion for Certificate of Appealability. After reviewing the petition, this motion, the Court's prior order, and other related papers, the Court again concludes that Petitioner has not made a "substantial showing" of the denial of a constitutional right. Reasonable jurists would not find it debatable whether the Court was correct in its procedural ruling on the statute of limitations issue. Accordingly, the Court DENIES Petitioner's motion for a certifica te of appealability with respect to all of Petitioner's claims. Signed by Judge Irma E. Gonzalez on 10/7/2011. (USCA Case Number 11-56716. 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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AUGUSTUS NELSON,

CASE NO. 10-CV-1047 - IEG (MDD)
Petitioner,

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ORDER DENYING MOTION FOR
CERTIFICATE OF
APPEALABILITY

vs.
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KEN CLARK, Warden,

[Doc. No. 36]
Respondent.

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Presently before the Court is Petitioner’s motion for a certificate of appealability. [Doc.
No. 36.] On August 23, 2011, the Court dismissed Petitioner’s petition for habeas corpus as
barred by the statute of limitations and denied Petitioner a certificate of appealability. [Doc. No.
33.] Accordingly, the Court treats the present motion as a motion for reconsideration of the
Court’s prior order denying Petitioner a certificate of appealibility.
A petitioner complaining of detention arising from state court proceedings must obtain a
certificate of appealability to file an appeal of the final order in a federal habeas proceeding. 28
U.S.C. § 2253(c)(1)(A). The district court may issue a certificate of appealability if the petitioner
“has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). To
make a “substantial showing” when the district court denies a habeas petition on procedural
grounds, the petitioner must show “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.
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10cv1047

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McDaniel, 529 U.S. 473, 484 (2000).
After reviewing the petition, this motion, the Court’s prior order, and other related papers,

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the Court again concludes that Petitioner has not made a “substantial showing” of the denial of a

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constitutional right. Reasonable jurists would not find it debatable whether the Court was correct

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in its procedural ruling on the statute of limitations issue. Accordingly, the Court DENIES

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Petitioner’s motion for a certificate of appealability with respect to all of Petitioner’s claims.

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IT IS SO ORDERED.
DATED: October 7, 2011

______________________________

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IRMA E. GONZALEZ, Chief Judge
United States District Court

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10cv1047