IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 20, 2009
EUGENE ROBERT CATE, PETITIONER,
ROBERT L. AYERS, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
Petitioner, a state prisoner proceeding through counsel, has timely filed a notice of appeal of this court's November 18, 2008 denial of his application for a writ of habeas corpus together with a request for a certificate of appealability pursuant to 28 U.S.C. § 2253(c).
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 September 26, 2008 findings and recommendations, petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's December 18, 2008 request for a certificate of appealability is denied; and
2. The Clerk of the Court is directed to process petitioner's appeal to the United States Court of Appeals for the Ninth Circuit.
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