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United States v. Avila

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


October 19, 2010

UNITED STATES OF AMERICA, RESPONDENT,
v.
RUBEN GONZALEZ AVILA, MOVANT.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

Movant, a federal prisoner proceeding pro se, has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

On September 2, 2010, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. On September 17, 2010, movant filed a motion to vacate the judgment which the court construes to contain objections to the findings and recommendations as well as a notice of appeal.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.

Before movant 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 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 movant 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

Movant has made a substantial showing of the denial of a constitutional right in the following issues presented in the instant motion: whether this action is barred by the statute of limitations.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed September 1, 2010, are adopted in full;

2. Respondent's motion to dismiss (Dkt. No. 52) is granted;

3. The Clerk of the Court is directed to close the companion civil case, No. 2: 10-cv-1334 GEB KJN P.

4. Movant's motion to vacate the judgment (Dkt. No. 55) is construed to contain objections to the findings and recommendations as well as a notice of appeal;

5. A certificate of appealability is issued in the present action.


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