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McNeely v. Salinas

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


August 13, 2010

DOCK MCNEELY, PETITIONER,
v.
S. M. SALINAS, WARDEN, RESPONDENT.

ORDER DENYING CERTIFICATE OF APPEALABILITY

Petitioner, a state prisoner proceeding pro se, has filed a notice of appeal of his own voluntary dismissal 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 court finds that petitioner has not made a substantial showing of the denial of a constitutional right. When the court declines to issue a certificate of appealability, it must state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b). Here, plaintiff voluntarily dismissed his petition and has presented no valid reason why he should be allowed to revoke or withdraw his dismissal. Accordingly, a certificate of appealability should not issue in this action.

IT IS SO ORDERED

20100813

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