Ibrahim v. Kernan
ORDER Issuing Certificate of Appealability; Motion 16 for Certificate of Appealability is denied as moot. Signed by Judge Roger T. Benitez on 4/10/2018. (anh). (Modified on 4/11/2018: USCA Case Number 18-55381. Order electronically transmitted to the US Court of Appeals via regenerated NEF.) (akr). (anh).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
Case No.: 3:17-cv-00696-BEN-AGS
HUSSEIN ADEN IBRAHIM,
ORDER ISSUING CERTIFICATE
ROBERT FOX, WARDEN,
Petitioner Hussein Aden Ibrahim, a state prisoner, commenced this action with the
filing of a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 5,
2017. (Docket No. 1.) Subsequently, following review of Petitioner’s First Amended
Petition, Respondent’s Motion to Dismiss, Petitioner’s Opposition, and the lodgments,
Magistrate Judge Andrew G. Schopler issued a thoughtful and thorough Report and
Recommendation (“Report”) recommending that the Motion be granted. (Docket No.
13.) Objections to the Report were due by February 8, 2018. (Id.) Petitioner timely filed
his objections to the Report. (Docket No. 14.)
On February 20, 2018, following review of the Report, the parties’ briefings, and
Petitioner’s objections, this Court fully adopted the Report, granting Respondent’s
motion to dismiss. (Docket No. 15.) On March 21, 2018, Petitioner filed a motion for a
certificate of appealability for the following issue. On March 22, 2018, Petitioner filed
his Notice of Appeal. (Docket No 17.) On April 10, 2018, the Ninth Circuit issued an
order in Petitioner’s appeal remanding Petitioner’s case to this Court with instructions to
issue or deny a certificate of appealablity. (Docket No. 19.)
A certificate of appealability must be obtained by a petitioner in order to pursue an
appeal from a final order in a section 2254 habeas corpus proceeding. 28 U.S.C. §
2253(c)(1)(A); Fed. R. App. P. 22(b). A certificate of appealability should be issued only
where the petition presents “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). “[T]he district court shall indicate which specific issue or issues
satisfy the standard for issuing a certificate, or state its reasons why a certificate should
not be granted.” United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). A
certificate should issue where the prisoner shows that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right,
and whether the district court was correct in its procedural ruling. See Slack v. McDaniel,
529 U.S. 473, 484 (2000).
The Court finds that Petitioner has raised colorable, nonfrivolous arguments with
respect to his contention that he filed a timely habeas petition. (See Docket No. 16-1.)
Therefore, the Court issues a certificate of appealability on the sole issue of:
Whether Petitioner’s state habeas petition was timely filed such
that the statute of limitations for his federal habeas petition was
tolled until the California Supreme Court denied his state
habeas petition on February 7, 2017?
IT IS SO ORDERED.1
Dated: April 10, 2018
Because the Court has issued a certificate of appealability, Petitioner’s motion for
certificate of appealability is denied as moot.
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