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James Ronell Abernathy v. Ben Curry

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


December 8, 2010

JAMES RONELL ABERNATHY, PETITIONER,
v.
BEN CURRY, WARDEN, RESPONDENT.

ORDER

Petitioner, a state prisoner proceeding pro se, requested additional time in which to file a request for a certificate of appealability. The magistrate judge construed this as a motion of time in which to file a notice appeal and granted the request. Petitioner has filed a motion for a certificate of appealability within the additional time granted; this court treats the motion as a notice of appeal as well as a request for a certificate of appealability. See Tinsley v. Borg, 895 F.2d 520, 523 (9th Cir. 1990). 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 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).

Where, as here, the petition 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, 484 (2000).

After careful review of the entire record herein, this court finds that petitioner 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 the petition was timely. Accordingly, a certificate of appealability should not issue in this action. His request, however, will be treated as a notice of appeal.

IT IS SO ORDERED.

20101208

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