IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
September 16, 2011
ANTHONY B. TILLMAN, PETITIONER,
BOARD OF PAROLE HEARINGS, RESPONDENTS.
Petitioner, a state prisoner proceeding pro se, has filed a motion for a certificate of appealability pursuant to 28 U.S.C. § 2253. Petitioner seeks a certificate of appealability to appeal this court's August 9, 2011 dismissal of his application for a writ of habeas corpus for failure to obtain authorization from the United States Court of Appeals for the Ninth Circuit to proceed with a second or successive habeas corpus petition. Petitioner has not filed a notice of appeal.
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).
Where, as here, the petition was dismissed on procedural grounds, a certificate of appealability "should issue if the prisoner can show: (1) 'that jurists of reason would find it debatable whether the district court was correct in its procedural ruling'; and (2) 'that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.'" Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
After careful review of the entire record herein, this court finds that petitioner has not satisfied the first requirement for issuance of a certificate of appealability in this case. Specifically, there is no showing that jurists of reason would find it debatable whether this action could proceed without authorization from the court of appeals. Accordingly, a certificate of appealability should not issue in this action.
Accordingly, IT IS HEREBY ORDERED that petitioner's August 15, 2011 motion for certificate of appealability is denied.
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