ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY [Doc. 26]
On April 17, 2009, the Court denied Petitioner's petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and judgment was entered in favor of Respondent this same day.
On May 4, 2009, Petitioner filed a notice of appeal.
On April 29, 2011, the Ninth Circuit Court of Appeals remanded the case back to this Court for the limited purpose of granting or denying a certificate of appealability.
The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:
(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings.
(c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from--
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
In the present case, the Court finds that Petitioner has not made the required substantial showing of the denial of a constitutional right. As explained in the Court's April 17, 2009 order, Petitioner has not shown that the state court's last reasoned decision finding Petitioner had failed to demonstrate his sentence was in violation of the constitution or statutory law, was "contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented [to it]." 28 U.S.C. § 2254(d). Accordingly, Petitioner's request for a certificate of appealability is DENIED.