IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 10, 2008
FABIAN CHEVALIER MILLS, PETITIONER,
D.L. RUNNELS, WARDEN, RESPONDENT.
The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge
Petitioner, a state prisoner proceeding pro se, has filed an untimely Notice of Appeal from the judgment entered herein on December 14, 2007. Docket No. 35.
Before Petitioner can appeal the judgment, a Certificate of Appealability ("COA") must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). "To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that... includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 482 (2000) (internal quotation marks and citations omitted).
The Court declines to issue a COA for the reasons set forth in the magistrate judge's June 1, 2006, findings and recommendations and this Court's order of December 14, 2007. No reasonable jurist could find that the California Court of Appeal's rejection of Petitioner's insufficient evidence argument was contrary to or an unreasonable application of federal law or based on an unreasonable determination of the facts. Nor could a reasonable jurist find that Petitioner was prejudiced by his counsel's alleged ineffective assistance.
IT IS SO ORDERED.
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