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Harper v. Sisto

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


May 21, 2010

JOHN E. HARPER, PETITIONER,
v.
D. K. SISTO, WARDEN, ET AL., RESPONDENTS.

FINDINGS & RECOMMENDATIONS

Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's April 27, 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); Hayward v. Marshall, No. 06-55392, 2010 WL 1664977, *5 (9th Cir. Apr.22, 2010) (en banc).

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).

"The standard for a certificate of appealability is lenient." Hayward, 2010 WL 1664977, at *4. A petitioner need only "show that reasonable jurists could debate the district court's resolution of that the issues are adequate to deserve encouragement to proceed further." Id. (internal quotations omitted). See also Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Barefoot v. Estelle, 463 U.S. 880, 893 (1983); Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002).*fn1

For the reasons set forth in the magistrate judge's March 24, 2010 findings and recommendations, the court finds that petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability should not issue in this action.

IT IS SO ORDERED.


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