UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION
May 19, 2009
HECTOR BARAJAS, PETITIONER,
JAMES E. HALL, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Honorable George H. WU United States District Judge
ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY
On April 30, 2009, petitioner filed a motion for a certificate of appealability from the Judgment dismissing the Petition for Writ of Habeas Corpus, entered on February 13, 2009.*fn1
An appeal may not be taken from the denial by a district judge of an application for a writ of habeas corpus in which the detention complained of arises out of process issued by a state court "unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)." Fed. R. App. P. 22(b). An appeal from the denial of a habeas action is a "civil" matter; therefore the notice of appeal must be filed with the district court clerk within 30 days after the entry of judgment. Here, because the Judgment was entered on February 13, 2009, the deadline for filing the notice of appeal was March 16, 2009. Fed. R. App. P. 4(a); Malone v. Avenenti, 850 F.2d 569, 571 (9th Cir. 1988). Petitioner did not file his notice of appeal until April 30, 2009. While this Court must treat the notice of appeal as constructively filed on the date it was given to prison authorities to be mailed, the notice is still untimely as it reflects that petitioner delivered it to prison authorities for mailing on April 22, 2009. See Houston v. Lack, 487 U.S. 266, 270, 276, 108 S.Ct. 2379, 101 L.Ed. 2d 245 (1988) (petitioner's notice of appeal filed when he delivered the notice to prison authorities for forwarding to the district court). Under these circumstances, the Court is without power to grant the certificate of appealability. Dunn v. Henderson, 446 F.2d 1398 (5th Cir. 1971).
In any event, even if the petitioner's notice of appeal and request for a certificate of appealability had been timely filed, his request would still be denied. Under Rule 22(b) of the Federal Rules of Appellate Procedure, if an appeal is taken by the applicant, "the district judge who rendered the judgment must either issue a certificate of appealability or state why a certificate should not issue." Id. "A certificate of appealability may issue . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A "substantial showing . includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (citation omitted); see also Sassounian v. Roe, 230 F.3d 1097, 1101 (9th Cir. 2000). Thus, "[w]here a district court has rejected the constitutional claims on the merits, . [t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack, 529 U.S. at 484.
In accordance with 28 U.S.C. § 2253(c)(3), the Court finds that petitioner has not made the requisite substantial showing of a denial of a constitutional right with respect to any of the grounds for relief set forth in the Petition.
THEREFORE, for the foregoing reasons, petitioner's request for a Certificate of Appealability is DENIED.
PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE