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United States v. Jason E. Smith

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


July 18, 2011

UNITED STATES, PLAINTIFF,
v.
JASON E. SMITH, DEFENDANT.

ORDER RE CERTIFICATE OF APPEALABILITY

Defendant Jason E. Smith has filed a notice of appeal of this court's June 15, 2011 order denying his application for writ of error coram nobis and writ of audita querela. (Docket #81.) Before petitioner can appeal this decision, a ce-* rtificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). On July 11, 2011, the Ninth Circuit remanded the case to this court for the limited purpose of granting or denying a certificate of appealability. (Docket #85.)

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).

A certificate of appealability should be granted for any issue that petitioner can demonstrate is "'debatable among jurists of reason,'" could be resolved differently by a different court, or is "'adequate to deserve encouragement to proceed further.'" Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). Any doubt about granting a certificate of appealability must be resolved in the petitioner's favor. Id.

Here, for the reasons stated in the court's June 15, 2011 order, defendant has not made a substantial showing of the denial of a constitutional right with respect to entitlement to a post-conviction writ, and accordingly, IT IS HEREBY ORDERED that a certificate of appealability shall not issue in this case.

20110718

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