IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
August 18, 2010
UNITED STATES OF AMERICA, RESPONDENT,
ELIAS MIGUEL BERRERA-MEDINA, MOVANT.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
(9th Cir. No. 10-16089)
Movant, a federal prisoner proceeding pro se, brings this motion to correct or set aside a criminal judgment pursuant to 28 U.S.C. § 2255. On March 19, 2010, the court issued an order granting respondent's motion to dismiss. Movant appealed. On July 28, 2010, the Ninth Circuit Court of Appeals issued an order remanding the case to this court for the limited purpose of granting or denying a certificate of appealability. See United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997).
Where, as here, the § 2255 motion 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, 120 S.Ct. 1595, 1604 (2000)). After careful review of the entire record herein, this court finds that movant 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 movant's motion was timely.
Accordingly, IT IS HEREBY ORDERED that:
1. Movant's request for a certificate of appealability is denied; and
2. The Clerk of the Court is directed to serve a copy of this order on the Ninth Circuit Court of Appeals.
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