IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 8, 2008
ANGEL BORG, PETITIONER,
ROSANNE CAMPBELL, ET AL., RESPONDENTS.
The opinion of the court was delivered by: John A. Mendez United States District Judge
Petitioner, a state prisoner proceeding, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner's request for a certificate of appealability (Doc. 33), filed on August 28, 2007.
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's dismissal of his application for a writ of habeas corpus as untimely. Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). 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).
Where, as here, the petition was dismissed on procedural grounds, a certificate of appealability "should issue if the prisoner can show: (1) 'that jurists of reason would find it debatable whether the district court was correct in its procedural ruling'; and (2) 'that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.'" Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000)). After careful review of the entire record herein, this court finds that petitioner has not satisfied the first requirement for issuance of a certificate of appealability in this case. Specifically, there is no showing that jurists of reason would find it debatable whether petitioner's petition was timely.
Also pending before the court is appointed counsel's motion to withdraw (Doc. 34) due to irreconcilable differences. Good cause appearing therefor, the request will be granted. Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's request for a certificate of appealability is denied; and
2. Counsel's motion to withdraw (Doc. 34) is granted.
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