Leonard Saldana v. Neil McDowell
Filing
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ORDER Denying Certificate of Appealability. Signed by Judge Janis L. Sammartino on 3/9/2017.(All non-registered users served via U.S. Mail Service)(dxj) (sjt).
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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LEONARD SALDANA,
Case No.: 16-cv-0161-JLS (BLM)
Petitioner,
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ORDER DENYING CERTIFICATE
OF APPEALABILITY
v.
NEIL MCDOWELL, Warden,
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Respondent.
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Presently before the Court is the case of Leonard Saldana v. Neil McDowell. The
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Court has adopted Magistrate Judge Barbara Lynn Major’s Report and Recommendation
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and concluded that Petitioner’s claims are time-barred. (ECF No. 32.)
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Rule 11(a) governing Section 2254 and 2255 cases establishes that a “district court
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must issue or deny a certificate of appealability when it enters a final order adverse to the
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applicant.” See 28 U.S.C. § 2254. A certificate of appealability is authorized “if the
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applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
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§ 2253(c)(2) (2008). “A petitioner satisfies this standard by demonstrating that jurists of
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reason could disagree with the district court’s resolution of his constitutional claims or that
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16-cv-0161-JLS (BLM)
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jurists could conclude the issues presented are adequate to deserve encouragement to
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proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack v.
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McDaniel, 529 U.S. 473, 484 (2000).
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In the present case, Judge Major carefully and thoroughly addressed the underlying
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Motion to Dismiss the Petition, and Petitioner’s Opposition to the same. (ECF No. 20.)
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This Court considered Petitioner’s Objection to Judge Major’s Report and
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Recommendation, (ECF No. 32), and concluded that Petitioner’s case is unquestionably
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time barred and that Petitioner provided no new evidence to support his theory of actual
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innocence. Given the foregoing, the Court also concludes that no jurist of reason could
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either disagree with this resolution or conclude that the issues presented are adequate to
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deserve encouragement to proceed further.
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The Court therefore DENIES a certificate of appealability.
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IT IS SO ORDERED.
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Dated: March 9, 2017
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16-cv-0161-JLS (BLM)
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