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Prasad v. Yates

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


January 6, 2010

REGINAL PRASAD, PETITIONER,
v.
JAMES A. YATES, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

ORDER

Petitioner, a state prisoner proceeding through counsel, has timely filed a notice of appeal of this court's November 24, 2009 dismissal of his application for a writ of habeas corpus as barred by the statute of limitations together with a motion for a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and 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 this action is barred by the statute of limitations.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's December 8, 2009 motion for a certificate of appealability is denied; and

2. The Clerk of the Court is directed to send a copy of this order to the United States Court of Appeals for the Ninth Circuit.

20100106

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