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Jones v. Felker

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 26, 2008

TIMOTHY RAY JONES, PETITIONER,
v.
T. FELKER, WARDEN, ET AL., RESPONDENTS.

The opinion of the court was delivered by: John A. Mendez United States District Judge

ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 11, 2007, petitioner filed a notice of appeal and on January 8, 2008, petitioner filed an application for a certificate of appealability. Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

In the September 28, 2006, findings and recommendations, the magistrate judge found that petitioner had previously filed an application for a writ of habeas corpus attacking the conviction and sentence challenged in this case.*fn1

A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b).

For the reasons set forth in the magistrate's September 28, 2006, findings and recommendations, petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability should not issue in this action.

IT IS SO ORDERED.


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