IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 21, 2011
M. MARTEL, RESPONDENT.
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Petitioner, a state prisoner proceeding pro se, has filed a motion for a certificate of appealability within his notice of appeal. See ECF No. 46. On November 23, 2010, the United States Magistrate Judge assigned to this matter filed an order, findings and recommendations herein, which was served on Petitioner, and which advised Petitioner that in any objections he elected to file, he may address whether a certificate of appealability should issue in the event he elected to file an appeal from the judgment in this case. See ECF No. 35. On January 21, 2011, Petitioner filed a motion to convert his petition into a civil rights complaint, a motion to appoint counsel, and a motion to proceed in forma pauperis. See ECF Nos. 38-40. On January 26, 2011, the Magistrate Judge denied both the motion to appoint counsel and the motion to proceed in forma pauperis. See ECF No. 41.
On February 11, 2011, the undersigned issued an order adopting the findings and recommendations in full, terminating the motion to convert the petition, and declining to issue a certificate of appealability. See ECF No. 42.
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 state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b).
Petitioner's request was previously addressed, and a certificate of apppealability was not issued. See ECF No. 42. Petitioner has presented no basis for reconsidering this decision. A certificate of appealability shall not issue. Therefore, Petitioner's March 3, 2011 motion for a certificate of appealability (ECF No. 46) is DENIED.
IT IS SO ORDERED.
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