IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
October 12, 2011
UNITED STATES OF AMERICA, PLAINTIFF,
The opinion of the court was delivered by: Edward J. Garcia, Judge United States District Court
ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY
Defendant, a federal prisoner proceeding pro se, has filed a Notice of Appeal from this court's April 11, 2011 order denying his § 2255 motion to vacate, set aside or correct his sentence. Embodied within that document is a "request for a certificate of appealability on all issues." Through administrative oversight, defendant's appeal has not been processed, nor his request for a certificate acted upon even though the appeal was timely filed on April 20, 2011.
A certificate of appealability must be issued before defendant can appeal the decision. See Fed. R. App. P. 22(b). Such certification may issue "only if [defendant] 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)(1).
For all of the reasons stated in the court's April 11, 2011 order, defendant has waived his rights to collaterally attack his conviction and sentence and, alternatively, has not made a substantial showing of the denial of a constitutional right. Accordingly, the motion for a certificate of appealability is DENIED.
IT IS SO ORDERED.
Edward J. Garcia
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