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United States v. Suarez

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


September 15, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
OCTAVIO HERNANDEZ SUAREZ, DEFENDANT.

The opinion of the court was delivered by: Edward J. Garcia, Judge United States District Court

ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY

Defendant has filed a Notice of Appeal from the court's June 24, 2010 order denying his Rule 60(b) motion, and the July 26, 2010 order denying his motion for reconsideration of the same. He has also filed a request for a certificate of appealability. It is unclear whether such a certificate is necessary since the appeal is not sought from a final order denying a § 2255 petition.*fn1 However, the request will be addressed to obviate the need for a remand from the appellate court in the event a certificate is required.

A certificate of appealability may issue "only if [defendant] 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)(1). For all the reasons stated in the court's June 24, 2010 order denying the Rule 60(b) motion for relief from judgment, defendant has not made a substantial showing of the denial of a constitutional right.

The request for a certificate of appealability is DENIED.

IT IS SO ORDERED.


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