The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING CERTIFICATE OF APPEALABILITY
On November 10, 2008, Charles Twain Clemans, Jr. ("Petitioner"), a California state prisoner proceeding pro se, filed a First Amended Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 5.) On December 19, 2008, Respondent moved to dismiss the petition for failure to comply with the statute of limitations in 28 U.S.C. § 2244(d)(1). (Doc. No. 9.) The Magistrate Judge issued a Report and Recommendation on February 17, 2009, recommending that this Court dismiss the petition as untimely. (Doc. No. 13.) After Petitioner filed an Objection to the Report and Recommendation (Doc. No. 16), the Court adopted the Report and Recommendation and dismissed the petition for failure to comply with 28 U.S.C. § 2244(d)(1) (Doc. No. 17). Petitioner then filed an application in this Court for a Certificate of Appealability on July 13, 2009. (Doc. No. 20.)
For the reasons below, the Court DENIES Petitioner's Application for a Certificate of Appealability.
A. Certificate of Appealability
A petitioner may not seek an appeal of a claim arising out of state court detention unless the petitioner first obtains a certificate of appealability from a district judge or a circuit judge under 28 U.S.C. § 2253. Fed. R. App. P. 22(b). Under 28 U.S.C. § 2253(c)(1), a certificate of appealability will issue only if the petitioner makes a substantial showing of the denial of a constitutional right. Moreover, when a district court has denied a petition on procedural grounds, a certificate of appealability should issue if the petitioner shows both 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). A court need not address both showings if one showing is defective. Slack, 529 U.S. at 485. The statute of limitations in 28 U.S.C. § 2244(d)(1) requires that federal habeas review occur within one-year of the conclusion of a state's direct review. Even if all of Petitioner's arguments about his state collateral review are correct, the petition is still time-barred because Petitioner's collateral review did not begin until almost nine years after the completion of direct review, and therefore no reasonable jurist could find that the federal petition was timely filed.
After reviewing the Court's order (Doc. No. 17), and considering the points raised in the application for a certificate of appealability (Doc. No. 20), the Court concludes that Petitioner has failed to make a substantial showing of a denial of a constitutional right.
For the reasons stated above, the Court DENIES a Certificate of Appealability.
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