IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 18, 2009
MARK S. MUSZYNSKI, PETITIONER,
D.L. RUNNELS, ET AL., RESPONDENTS.
The opinion of the court was delivered by: John A. Mendez United States District Judge
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's October 6, 2008 dismissal of his application for a writ of habeas corpus. 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). When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a certificate of appealability should issue when the prisoner shows that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The certificate of appealability must "indicate which specific issue or issues satisfy" the above requirements. 28 U.S.C. § 2253(c)(3).
For the reasons set forth in the magistrate judge's August 13, 2008 findings and recommendations, and this court's October 6, 2008 order, jurists of reason would not find it debatable whether petitioner's application was properly dismissed. Accordingly, a certificate of appealability should not issue in this action.
IT IS SO ORDERED.
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