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Clarence Joseph Hayes v. Debera Dexter

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


May 3, 2011

CLARENCE JOSEPH HAYES, PETITIONER,
v.
DEBERA DEXTER, ET AL., RESPONDENTS.

ORDER DENYING CERTIFICATE OF APPEALABILITY

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

In the petition, petitioner sought habeas relief on the grounds that (1) he did not forfeit his claims raised herein by failing to object in the trial court to his full-term consecutive and upper-term sentence, which he alleges violates his Fifth, Sixth and Fourteenth Amendment rights; (2) he was denied effective assistance of counsel when his trial attorney failed to object to the sentence imposed; and (3) his sentence violates the Eighth Amendment.

A petitioner may not appeal a final order in a federal habeas corpus proceeding without first obtaining a certificate of appealability (formerly known as a certificate of probable cause to appeal). See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A judge shall grant a certificate of appealability "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 must indicate which issues satisfy this standard. See id. § 2253(c)(3). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473 (2000). If the certificate is granted, the court must specify the issue or is sues it has found to satisfy the standard for granting a COA. 28 U.S.C. § 2253(c)(3).

Upon review, the court declines to issue a certificate of appealability for the reasons forth in the magistrate judge's August 3, 2010 findings and recommendations.

IT IS SO ORDERED.

20110503

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