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Garcia v. Martel

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


May 18, 2010

DANNY GARCIA, PETITIONER,
v.
WARDEN MICHAEL MARTEL, RESPONDENT.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

Petitioner, a state prisoner proceeding without counsel, has filed a notice of appeal of this court's dismissal of his application for a writ of habeas corpus, and moves for 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).

Petitioner challenges this court's rulings that his action was time-barred and that his claim of actual innocence did not meet the requirements for overcoming this statute of limitations bar and convening an evidentiary hearing. See Magistrate Judge's Findings and Recommendations, filed February 25, 2010 (Docket No. 37), and Order Adopting Findings and Recommendations, filed March 31, 2010 (Docket No. 39). Petitioner has therefore not made a substantial showing of the denial of a constitutional right.

Accordingly, petitioner's motion for a certificate of appealability (Dkt. No. 43) is denied.

SO ORDERED.

20100518

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