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Brown v. Curry

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


June 3, 2009

LOVELL S. BROWN, PETITIONER,
v.
B. CURRY, WARDEN, ET AL., RESPONDENTS.

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

ORDER

Petitioner, a state prisoner proceeding pro se, timely has filed a notice of appeal of this court's xxdate, dismissal of his application for a writ of habeas corpus on the ground that he filed beyond the one-year limitations period. 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).

Where, as here, the petition was dismissed on procedural grounds, a certificate of appealability "should issue if the prisoner can show: (1) 'that jurists of reason would find it debatable whether the district court was correct in its procedural ruling'; and (2) 'that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.'" Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000)).

After careful review of the entire record herein, this court finds that petitioner has satisfied the first requirement for issuance of a certificate of appealability. Specifically, the court finds that jurists of reason would find it debatable whether the limitations period was triggered pursuant to 28 U.S.C. § 2244(d)(1)(A) or 28 U.S.C. § 2244(d)(1)(D), and whether the petition is timely based on petitioner's having demonstrated good cause for not timely filing habeas petitions in state court. Accordingly, a certificate of appealability should issue in this action.

IT IS SO ORDERED.

20090603

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