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Scott v. Ives

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


April 5, 2010

CHRISTOPHER SCOTT, PETITIONER,
v.
RICHARD B. IVES, RESPONDENT.

ORDER*fn1

Petitioner, a federal prisoner proceeding pro se, has timely filed a notice of appeal of this court's January 13, 2010 denial of petitioner's motion for reconsideration of this court's July 10, 2009 dismissal of his petition writ of habeas corpus.

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 the petition at bar is properly construed as a motion pursuant to 28 U.S.C. § 2255, rather than a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, whether petitioner has not obtained authorization from the United States Court of Appeals for the Eighth Circuit to proceed with a second or successive § 2255 motion, or whether this court lacks jurisdiction over the action filed in this court. Accordingly, the undersigned finds that a certificate of appealability should not issue in this case.

IT IS SO ORDERED.


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