IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
November 15, 2011
WENDELL STUART, PETITIONER,
The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Petitioner, a state prisoner proceeding without counsel, has filed a notice of appeal of this court's dismissal of petitioner's application for a writ of habeas corpus, and thus moves for a certificate of appealability. 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 state the reasons why such a certificate should not issue. Fed. R. App. P. 22(b).
This court properly dismissed as time-barred the instant petition for writ of habeas corpus; petitioner failed to assert any basis to warrant equitable tolling of the limitations period. Moreover, the court found, alternatively, a lack of support for petitioner's "actual innocence" and due process claims. See Magistrate Judge's Findings and Recommendations, filed July 14, 2011 (Docket No. 15), and Order Adopting Findings and Recommendations, filed September 12, 2011 (Docket No. 20). Therefore, petitioner has not made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
Accordingly, IT IS HEREBY ORDERED that petitioner's request for a certificate of appealability (Dkt. No. 22), is DENIED.
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