The opinion of the court was delivered by: James P. Hutton United States Magistrate Judge
ORDER DENYING ISSUANCE OF A CERTIFICATE OF APPEALABILITY (Ct. Rec. 38)
Petitioner is a state prisoner proceeding with appointed counsel and in forma pauperis with petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Ct. Rec. 1, amended at Ct. Rec. 22). The parties consented to a magistrate judge's jurisdiction. (Ct. Rec.8.)
On August 24, Petitioner filed a notice of appeal (Ct. Rec. 38) of the July 29, 2009, order denying the petition for a writ (Ct. Rec. 36). "If no express request for a certificate is filed, the notice of appeal constitutes a request addressed to the judges of the court of appeals." Fed. R. App. P. 22(b)(3). A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his or her petition, and an appeal is only allowed in certain circumstances.
Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003). The controlling statute in determining whether to issue a certificate of appealabilty is 28 U.S.C. § 2253, which provides:
(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings.
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 225.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
Therefore, final orders issued by a federal district court in habeas 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 a 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 ...