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Kerns v. Adams

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


July 27, 2009

JAMES KERNS, PETITIONER,
v.
D. ADAMS, RESPONDENTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's April 23, 2009 denial of his application for a writ of habeas corpus. Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

In addition, petitioner has filed a request for injunctive relief, asking the court to direct prison officials to provide petitioner with his legal property so he can file a request for a certificate of appealability. However, this court deems petitioner's notice of appeal to encompass a request that it issue such a certificate.

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 January 26, 2009 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.

Moreover, because the court deems the notice of appeal to include a request for the issuance of a certificate of appealability, petitioner's motion for injunctive relief (docket no. 49) is denied.

20090727

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