Ibrahim v. Kernan

Filing 20

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).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 3:17-cv-00696-BEN-AGS

HUSSEIN ADEN IBRAHIM,
Petitioner,

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v.

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ORDER ISSUING CERTIFICATE
OF APPEALABILITY

ROBERT FOX, WARDEN,

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Respondent.

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Petitioner Hussein Aden Ibrahim, a state prisoner, commenced this action with the

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filing of a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 5,

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2017. (Docket No. 1.) Subsequently, following review of Petitioner’s First Amended

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Petition, Respondent’s Motion to Dismiss, Petitioner’s Opposition, and the lodgments,

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Magistrate Judge Andrew G. Schopler issued a thoughtful and thorough Report and

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Recommendation (“Report”) recommending that the Motion be granted. (Docket No.

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13.) Objections to the Report were due by February 8, 2018. (Id.) Petitioner timely filed

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his objections to the Report. (Docket No. 14.)

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On February 20, 2018, following review of the Report, the parties’ briefings, and

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Petitioner’s objections, this Court fully adopted the Report, granting Respondent’s

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motion to dismiss. (Docket No. 15.) On March 21, 2018, Petitioner filed a motion for a

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certificate of appealability for the following issue. On March 22, 2018, Petitioner filed
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3:17-cv-00696-BEN-AGS

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his Notice of Appeal. (Docket No 17.) On April 10, 2018, the Ninth Circuit issued an

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order in Petitioner’s appeal remanding Petitioner’s case to this Court with instructions to

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issue or deny a certificate of appealablity. (Docket No. 19.)

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A certificate of appealability must be obtained by a petitioner in order to pursue an

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appeal from a final order in a section 2254 habeas corpus proceeding. 28 U.S.C. §

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2253(c)(1)(A); Fed. R. App. P. 22(b). A certificate of appealability should be issued only

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where the petition presents “a substantial showing of the denial of a constitutional right.”

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28 U.S.C. § 2253(c)(2). “[T]he district court shall indicate which specific issue or issues

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satisfy the standard for issuing a certificate, or state its reasons why a certificate should

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not be granted.” United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). A

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certificate should issue where the prisoner shows that jurists of reason would find it

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debatable whether the petition states a valid claim of the denial of a constitutional right,

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and whether the district court was correct in its procedural ruling. See Slack v. McDaniel,

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529 U.S. 473, 484 (2000).

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The Court finds that Petitioner has raised colorable, nonfrivolous arguments with

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respect to his contention that he filed a timely habeas petition. (See Docket No. 16-1.)

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Therefore, the Court issues a certificate of appealability on the sole issue of:

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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?

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IT IS SO ORDERED.1
Dated: April 10, 2018

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Because the Court has issued a certificate of appealability, Petitioner’s motion for
certificate of appealability is denied as moot.
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3:17-cv-00696-BEN-AGS