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McGee v. Marshall

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


October 13, 2010

JOHN FITZGERALD MCGEE, PETITIONER,
v.
JOHN MARSHALL, ET AL., RESPONDENT.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus concerning his 2003 conviction for forcible oral copulation, sexual penetration with force, spousal abuse, and spousal rape. On August 26, 2010, the district court adopted this court's findings and recommendations denying the petition and dismissing the action with prejudice due to petitioner's failure to comply with the one-year statutory limitation period under 28 U.S.C. § 2244(d). Pending is petitioner's September 14, 2010 motion for a certificate of appealability.

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 certificate of appealability must "indicate which specific issue or issues satisfy" the requirement.

28 U.S.C. § 2253(c)(3).

A certificate of appealability should be granted for any issue that petitioner can demonstrate is "'debatable among jurists of reason,'" could be resolved differently by a different court, or is "'adequate to deserve encouragement to proceed further.'" Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).*fn1

Upon review and consideration, the undersigned concludes that petitioner has not made a substantial showing of the denial of a constitutional right.

Accordingly, IT IS HEREBY ORDERED that petitioner's motion for a certificate of appealability is denied.


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