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Tate v. Lamarque

January 9, 2009

DEREK TATE, PETITIONER,
v.
ORDER ANTHONY A. LAMARQUE, RESPONDENTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

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 for lack of jurisdiction. 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).

For the reasons set forth in the magistrate judge's May 13, 2008, 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.

20090109

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