IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 25, 2010
AOUS JARRAR, PETITIONER,
RONALD BARNES, RESPONDENT.
Petitioner, a state prisoner proceeding with counsel, has filed a timely notice of appeal seeking review of this court's dismissal of petitioner's application for a writ of habeas corpus. The court construes the notice as a request that this court issue a certificate of appealability. 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 state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b).
This court properly dismissed the instant petition without prejudice because it consisted of only one unexhausted claim. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("Once a district court determines that a habeas petition contains only unexhausted claims . . . it may simply dismiss the habeas petition for failure to exhaust"); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). See Magistrate Judge's Findings and Recommendations, filed October 30, 2009 (Docket No. 17), and Order Adopting Findings and Recommendations (Docket No. 19). Therefore, petitioner has not made a substantial showing of the denial of a constitutional right.
Accordingly, a certificate of appealability shall not be issued.
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