IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 27, 2009
JAMES KERNS, PETITIONER,
D. ADAMS, RESPONDENTS.
The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
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.
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