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Darrel Maurice Smith, Sr v. James D. Hartley

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


July 14, 2011

DARREL MAURICE SMITH, SR., PETITIONER,
v.
JAMES D. HARTLEY, WARDEN, RESPONDENT.

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

ORDER

Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's May 10, 2011, dismissal without prejudice of his application for a writ of habeas corpus as successive. 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).

For the reasons set forth in the magistrate judge's findings and recommendations, filed on March 28, 2011, petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability should not issue in this action.

IT IS SO ORDERED.

20110714

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