UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
October 16, 2009
LEE V. QUILLAR, PETITIONER,
M.S. EVANS, WARDEN, ET AL., RESPONDENTS.
The opinion of the court was delivered by: John A. Houston United States District Judge
ORDER DENYING CERTIFICATE OF APPEALABILITY
On July 29, 2009, petitioner, a state prisoner appearing pro se, filed petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in San Diego Superior Court. This Court, on August 14, 2009, summarily dismissed the petition as a barred successive petition filed without permission from the Ninth Circuit Court of Appeals in violation of 28 U.S.C. § 2244(b)(3). On August 31, 2009, petitioner filed a motion seeking relief from this Court's August 14, 2009 order, contending that his petition should not have been considered successive because he did not challenge his conviction in the new petition but, instead, simply sought an order from the Court requiring the state court to provide petitioner with the reporter's transcripts in his state court proceedings. On September 25, 2009, this Court denied petitioner's motion for relief from this Court's August 14, 2009 order, finding that, even if this Court were to construe the petition as simply seeking an order requiring the state court to provide petitioner with reporter's transcripts, such a request is not a cognizable claim on federal habeas review. See Doc. # 7 at 2 (citing 28 U.S.C. § 2254; Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Heck v. Humphrey, 512, U.S. 477, 480-85 (1994)). Therefore, this Court found the prior order summarily dismissing the petition was not in error.
On October 8, 2009, petitioner filed a notice of appeal. See Doc. # 8. Although petitioner did not expressly request a certificate of appealability concurrently with his notice of appeal, this Court sua sponte considers whether a certificate of appealability should be granted. See Fed.R.App.P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997)("If no express request is made for a certificate of appealability, the notice of appeal shall be deemed to constitute a request for certificate.").
A certificate of appealability is authorized "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To meet this threshold showing, a petitioner must show : (1) the issues are debatable among jurists of reason; or (2) that a court could resolve the issues in a different manner; or (3) that the questions are adequate to deserve encouragement to proceed further. Lambright v. Stewart, 220 F.3d 1022, 1024-25 (9th Cir. 2000)(citing Slack v. McDaniel, 529 U.S. 473 (2000) andBarefoot v. Estelle, 463 U.S. 880 (1983)).
Here, petitioner appeals this Court's summary order dismissing the petition for writ of habeas corpus as successive and the Court's denial of petitioner's motion for relief from the summary dismissal order. This Court finds that a certificate of appealability is not warranted in this instance because the dismissal of the instant petition under the circumstances here is not an issue debatable among jurists of reason nor could any other court resolve the issue in a different manner. Lambright, 220 F.3d at 1024-25. Accordingly, this Court DENIES a certificate of appealability in this case.
IT IS SO ORDERED.
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