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Dunigan v. Superior Court of Sacramento County

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 13, 2009

KEVIN W. DUNIGAN, PETITIONER,
v.
THE SUPERIOR COURT OF SACRAMENTO COUNTY, ET AL., RESPONDENTS.

ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 21, 2008, judgment was entered in this court dismissing the petition. On September 4, 2008, petitioner filed a document which the court construed as a motion pursuant to Fed. R. Civ. R. 60(b), which was denied by an order, filed on December 24, 2008. By application of the mailbox rule, the motion is deemed to have been filed on September 2, 2008.*fn1 Thereafter, on January 28, 2009, petitioner filed a notice of appeal, which by application of the mailbox rule, was evidently filed on January 20, 2009. Petitioner has timely filed an appeal of the judgment because his Rule 60(b) motion was filed within ten (10) days after the judgment was entered, and petitioner filed his notice of appeal within thirty days of the motion's denial. See Fed. R. App. P. 4(a)(4)(A)(vi).

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 July 23, 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.


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