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Ayala-Sanchez v. Scribner

September 15, 2008

JUAN CARLOS AYALA-SANCHEZ, PETITIONER,
v.
LARRY SCRIBNER, WARDEN, RESPONDENT.*FN1



The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation

ORDER

This Court dismissed Petitioner Juan Carlos Ayala-Sanchez's ("Ayala-Sanchez") application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254(a) because he failed to exhaust his state remedies before filing his federal petition. (Doc. 46). Pending before this Court is Ayala-Sanchez's Notice of Appeal. (Doc. 48). Before Petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1).

"A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S. C. § 2253(c)(2). Because this Court dismissed Ayala-Sanchez's application on procedural grounds, the constitutional merits were not reached. This Court cannot issue a certificate of appealability "[w]here a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, [and] a reasonable jurist could not conclude either the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Therefore, IT IS HEREBY ORDERED that a certificate of ...


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