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Jones v. Felker

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


June 5, 2009

CLINT JONES, PETITIONER,
v.
T. FELKER, RESPONDENT.

The opinion of the court was delivered by: Lonny R. Suko United States District Judge

ORDER RE: CERTIFICATION OF APPEAL

On May 26, 2009, Petitioner filed a motion for certificate of appealability to appeal the district court's denial of his habeas petition under 28 U.S.C. § 2254 (Ct. Rec. 29). See Fed. R. App. P. 22(b). This court will issue a certificate of appealability when a Petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The court has reviewed the file and is fully informed. For the reasons set forth below and in the court's earlier order herein, the request for issuance of a Certificate of Appealability is DENIED.

DISCUSSION

Petitioner filed a petition for habeas corpus on grounds that: 1) Fourth Amendment violation; 2) trial counsel acted incompetently in relying on the argument that the GPS monitoring constituted harassment; 3)the trial court improperly refused petitioner's request to represent himself; 4)the Court of Appeal did not address all of Petitioner's arguments; and 5) Petitioner received ineffective assistance of counsel. On April 28, 2009, the district court entered judgment in favor of Respondent, denying Petitioner's habeas corpus petition (Ct. Recs. 26, 27).

Final orders issued by a federal district court in habeas corpus proceedings are reviewable by the circuit court of appeals. 28 U.S.C. § 2253(a). In order to have final orders reviewed, Petitioner must obtain a certificate of appealability. 28 U.S.C. § 2253(c). This court will issue a certificate of appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the Petitioner must establish 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, 120 S.Ct. 1595, 1603-04 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).

Here, Petitioner's motion fails to make any showing, and specifically not a substantial showing, of the denial of a constitutional right. It is not apparent that reasonable jurists would differ on whether the motion should have been resolved in a different manner. Accordingly,

Based on the forgoing, IT IS HEREBY ORDERED:

1. Petitioner's Motion for Certificate of Appealability, Ct. Rec. 29, is DENIED.

IT IS SO ORDERED. The District Court Executive is directed to enter this Order and forward a copy to Petitioner.

20090605

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