IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 11, 2009
CECIL JEROME HATCHETT, PETITIONER,
FERNANDO GONZALEZ, RESPONDENT.
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's July 28, 2009 dismissal of his application for a writ of habeas corpus for failure to exhaust state remedies. 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, 484 (2000)).
After careful review of the entire record herein, this court finds that petitioner has not satisfied the first requirement for issuance of a certificate of appealability in this case. Specifically, there is no showing that jurists of reason would find it debatable whether petitioner has exhausted state remedies. However, the order dismissing this case, the order from which petitioner appeals, was issued by the undersigned under the authority of Section 636 (c)(3) and the signed consent to jurisdiction filed by petitioner. At the time of the dismissal no respondent had been joined in this matter. While the basis of the order of dismissal appears to be solid beyond peradventure, the authority of the undersigned may well be the subject of reasonable debate. Accordingly, the undersigned finds that a certificate of appealability should issue.
IT IS SO ORDERED.
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