Leonard Saldana v. Neil McDowell

Filing 34

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LEONARD SALDANA, Case No.: 16-cv-0161-JLS (BLM) Petitioner, 12 13 14 ORDER DENYING CERTIFICATE OF APPEALABILITY v. NEIL MCDOWELL, Warden, 15 Respondent. 16 17 18 19 20 Presently before the Court is the case of Leonard Saldana v. Neil McDowell. The 21 Court has adopted Magistrate Judge Barbara Lynn Major’s Report and Recommendation 22 and concluded that Petitioner’s claims are time-barred. (ECF No. 32.) 23 Rule 11(a) governing Section 2254 and 2255 cases establishes that a “district court 24 must issue or deny a certificate of appealability when it enters a final order adverse to the 25 applicant.” See 28 U.S.C. § 2254. A certificate of appealability is authorized “if the 26 applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 27 § 2253(c)(2) (2008). “A petitioner satisfies this standard by demonstrating that jurists of 28 reason could disagree with the district court’s resolution of his constitutional claims or that 1 16-cv-0161-JLS (BLM) 1 jurists could conclude the issues presented are adequate to deserve encouragement to 2 proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack v. 3 McDaniel, 529 U.S. 473, 484 (2000). 4 In the present case, Judge Major carefully and thoroughly addressed the underlying 5 Motion to Dismiss the Petition, and Petitioner’s Opposition to the same. (ECF No. 20.) 6 This Court considered Petitioner’s Objection to Judge Major’s Report and 7 Recommendation, (ECF No. 32), and concluded that Petitioner’s case is unquestionably 8 time barred and that Petitioner provided no new evidence to support his theory of actual 9 innocence. Given the foregoing, the Court also concludes that no jurist of reason could 10 either disagree with this resolution or conclude that the issues presented are adequate to 11 deserve encouragement to proceed further. 12 The Court therefore DENIES a certificate of appealability. 13 IT IS SO ORDERED. 14 Dated: March 9, 2017 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 16-cv-0161-JLS (BLM)

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