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Vincent C. Ortiz v. James Yates

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


December 22, 2011

VINCENT C. ORTIZ, PETITIONER,
v.
JAMES YATES, RESPONDENT.

The opinion of the court was delivered by: Garland E. Burrell, JR.United States District Judge

ORDER

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On December 14, 2011, the Ninth Circuit Court of Appeals remanded the case back to the district court for the limited purpose of granting or denying a certificate of appealability.

On January 20, 2010, respondent filed a motion to dismiss in this case. Petitioner did not file an opposition so on March 23, 2010, the magistrate judge issued an order to show cause why the motion to dismiss should not be granted. Petitioner did not file a response so on May 26, 2010, the magistrate judge issued findings and recommendations that the case be dismissed without prejudice. Petitioner chose not to file objections, so the findings and recommendations were adopted and judgment was entered on July 22, 2010, dismissing the case without prejudice. Petitioner filed an appeal on August 12, 2010. \\\\

Before petitioner can appeal this decision, a certificate of appealability must issue.

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 certificate of appealability must "indicate which specific issue or issues satisfy" the requirement. 28 U.S.C. § 2253(c)(3).

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)).*fn1

Petitioner has failed to make a substantial showing of the denial of a constitutional right.

Accordingly, IT IS HEREBY ORDERED that a certificate of appealability is not issued in the present action.


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