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Luu v. Singh

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


March 8, 2010

QUOC XUONG LUU, PETITIONER,
v.
V. SINGH, ET AL., RESPONDENTS.

ORDER

Petitioner, currently confined at the Solano County Jail, has timely filed a notice of appeal of this court's February 4, 2010 denial of his application for a writ of habeas corpus. 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 certificate of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. § 2253(c)(3).

A certificate of appealability should be granted for any issue that petitioner can demonstrate is "'debatable among jurists of reason,'" could be resolved differently by a different court, or is "'adequate to deserve encouragement to proceed further.'" Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).*fn1

Petitioner has made a substantial showing of the denial of a constitutional right in the following issue(s) presented in the instant petition: whether petitioner's habeas petition is time-barred under the Antiterrorism and Effective Death Penalty Act of 1996. Accordingly, the court will issue a certificate of appealability in this action.

Also pending before the court is petitioner's motion to transfer a copy of the record in this case to United States Court of Appeals for the Ninth Circuit. Petitioner is advised that the court will automatically forward necessary portions of the record to the Ninth Circuit with his appeal. In addition, the Ninth Circuit may request additional filings from this court if it so desires. Accordingly, the court will deny petitioner's motion as unnecessary.

Accordingly, IT IS HEREBY ORDERED that:

1. A certificate of appealability is issued in the present action; and

2. Petitioner's motion to transfer a copy of the record in this case to United States Court of Appeals for the Ninth Circuit (Doc. No. 13) is denied as unnecessary.


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