Grant v. Figueroa

Filing 12

ORDER denying 8 Petitioner's Application for Certificate of Appealability. Signed by Judge Michael M. Anello on 5/29/2012. (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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HILLEAL A. GRANT,

CASE NO. 12-cv-939-MMA (RBB)
Petitioner,

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ORDER DENYING
PETITIONER’S APPLICATION
FOR CERTIFICATE OF
APPEALABILITY

vs.
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F. E. FIGUEROA,
[Doc. No. 8]

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Respondent.

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On April 16, 2012 Petitioner Hilleal A. Grant, a state prisoner proceeding pro se, filed a

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his August 8, 2008

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state court conviction. [Doc. No. 1.] Along with his petition, Petitioner filed a motion to proceed

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IFP, which the Court denied on April 18, 2012. [Doc. Nos. 4, 5.] On April 19, 2012, Petitioner

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filed a notice of appeal, together with a request for this Court to issue a certificate of appealability.

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[Doc. Nos. 7, 8.]

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“The district court must issue or deny a certificate of appealability when it enters a final

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order adverse to the applicant.” Rule 11 foll. 28 U.S.C. § 2254 (emphasis added). A petitioner

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may not seek an appeal of a claim arising out of state court detention unless the petitioner first

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obtains a certificate of appealability from a district judge or a circuit judge under 28 U.S.C. §

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2253. Fed. R. App. P. 22(b). Under 28 U.S.C. § 2253(c)(1), a certificate of appealability will

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issue only if the petitioner makes a substantial showing of the denial of a constitutional right.

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12-cv-939-MMA (RBB)

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Upon due consideration, the Court concludes a certificate of appealability should not issue because

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the Court has not issued a final order and therefore Petitioner has not made a substantial showing

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of the denial of a constitutional right. Accordingly, the Court declines to issue a certificate of

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appealability, and DENIES Petitioner’s motion. [Doc. No. 8.]

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IT IS SO ORDERED.

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DATED: May 29, 2012

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Hon. Michael M. Anello
United States District Judge

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12-cv-939-MMA (RBB)