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Ramon D. Rubio v. A. Hedgpeth

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


February 29, 2012

RAMON D. RUBIO,
PETITIONER,
v.
A. HEDGPETH, RESPONDENT.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 11, 2009, judgment was entered in this court denying the petition as it was barred by the statute of limitations. On February 21, 2012, petitioner filed a notice of appeal. Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R .App. P. 22(b). Federal Rule of Appellate Procedure 22(b) requires the district court judge who rendered a judgment denying such petition to "either issue a certificate of probable cause or state the reasons why such a certificate should not issue."

The timely filing of a notice of appeal is a jurisdictional requirement. Scott v. Younger, 739 F.2d 1464, 1466 (9th Cir. 1984). Here, the time limit for filing a notice of appeal following entry of judgment is thirty days. See Fed. R. App. P. 4(a). Petitioner's notice of appeal in this action was filed approximately two and half years after the entry of judgment, well after the time limit. Therefore, the court declines to issue a certificate of appealability.

IT IS SO ORDERED.

20120229

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