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Davis v. Smelosky

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


December 10, 2008

ANTOINE DAVIS, PETITIONER,
v.
M.A. SMELOSKY, WARDEN RESPONDENT.

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

ORDER DENYING MOTION FOR CERTIFICATE OF APPEALABILITY

On November 11, 2008, Petitioner, appearing pro se filed a motion for enlargement of time to file petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 This Court denied the motion without prejudice upon finding the Court is without jurisdiction to extend the one-year statute or limitations of 28 U.S.C. § 2244(d)(1)(A)-(D). On December 8, 2008, Petitioner filed a notice of appeal (Doc. No. 3) and motion for a certificate of appealability (Doc. No. 4).

A certificate of appealability is authorized "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To meet this threshold showing, a petitioner must show : (1) the issues are debatable among jurists of reason; or (2) that a court could resolve the issues in a different manner; or (3) that the questions are adequate to deserve encouragement to proceed further. Lambright v. Stewart, 220 F.3d 1022, 1024-25 (9th Cir. 2000)(citing Slack v. McDaniel, 529 U.S. 473 (2000) andBarefoot v. Estelle, 463 U.S. 880 (1983)).

Petitioner seeks to appeal the Court's denial of the motion for enlargement of time. He maintains the ruling was erroneous, because he is entitled to a finding of an impediment under section 2244(d)(1)(B) or equitable tolling. This Court finds that a certificate of appealability is not warranted in this instance because the denial of the motion for enlargement of time to file a petition for writ of habeas corpus under the circumstances is not an issue debatable among jurists of reason nor could any other court resolve the issue in a different manner. Lambright, 220 F.3d at 1024-25. Accordingly, this Court DENIES Petitioner's motion for a certificate of appealability.


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