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Everette Buff v. L. Mcewan

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 17, 2011

EVERETTE BUFF,
PETITIONER,
v.
L. MCEWAN, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: Ruben B. Brooks United States Magistrate Judge

ORDER DENYING CERTIFICATE OF APPEALABILITY

On August 12, 2011, this Court issued an Order Granting Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus [ECF No. 11]. The Court found that the claims Buff asserts in Buff's Petition are barred by AEDPA's one-year statute of limitations, and that the Petitioner is not entitled to statutory or equitable tolling. (Order Granting Resp't's Mot. Dismiss 17, ECF No. 11.)

When a habeas corpus petitioner seeks to appeal a district court's order dismissing the petitioner, the certificate of appealability requirements set forth in 28 U.S.C. § 2253(c) govern the appeal. Slack v. McDaniel, 529 U.S. 473, 551 (2000). A certificate of appealability should only be issued if the applicant presents "a substantial showing of the denial of a constitutional right." 28 U.S.C.A. § 2253(c)(2) (2006). To meet this threshold showing, the petitioner must show that (1) the issues are debatable among jurists of reason, (2) a court could resolve the issues in a different way, or (3) the questions are adequate to deserve encouragement to proceed. Lambright v. Stewart, 220 F.3d 1022, 1024-25 (9th Cir. 2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 (1983)); see Slack, 529 U.S. at 483-84.

Here, the issues in Buff's Petition are not debatable among reasonable jurists and could not be resolved in a different manner. See Lambright, 220 F.3d at 1024-25. In light of the Petition's untimeliness, the questions do not deserve encouragement to proceed further. See id. Buff has not met the threshold showing of the denial of a constitutional right. 28 U.S.C.A. § 2253(c)(2). Consequently, the Court DENIES a certificate of appealability.

cc: All parties of record

20110817

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