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Green v. Small

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 1, 2010

DONALD GREEN, PETITIONER,
v.
LARRY SMALL, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER DENYING CERTIFICATE OF APPEALABILITY

On September 17, 2008, Petitioner Donald Green filed the present petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On August 14, 2009, pursuant to 28 U.S.C. § 636(b)(1), Magistrate Judge Barbara Lynn Major issued a Report and Recommendation ("R&R") advising that the Court deny the petition. (Doc. No. 21.) On September 21, 2009, Petitioner filed objections, (Doc. No. 24) and, having considered those objections and the R&R, the Court adopted Magistrate Judge Major's recommendation. (Doc. No. 26.) On March 24, 2010, Petitioner filed a notice of appeal (Doc. No. 28).*fn1

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). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court must either (1) grant the certificate of appealability indicating which issues satisfy the required showing or (2) state why a certificate should not issue. Fed. R. App. P. 22(b).

The Petition raised three legal issues, none of which merit certificate of appealability. The Court finds that reasonable jurists would agree that the California conclusions were neither contrary to nor an unreasonable application of clearly established federal law. Accordingly, the Court DENIES certificate of appealability in this case.


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