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Hilleal A. Grant v. F. E. Figueroa

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


May 29, 2012

HILLEAL A. GRANT,
PETITIONER,
v.
F. E. FIGUEROA,
RESPONDENT.

The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER DENYING PETITIONER'S APPLICATION FOR CERTIFICATE OF APPEALABILITY [Doc. No. 8]

On April 16, 2012 Petitioner Hilleal A. Grant, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his August 8, 2008 state court conviction. [Doc. No. 1.] Along with his petition, Petitioner filed a motion to proceed IFP, which the Court denied on April 18, 2012. [Doc. Nos. 4, 5.] On April 19, 2012, Petitioner filed a notice of appeal, together with a request for this Court to issue a certificate of appealability. [Doc. Nos. 7, 8.]

"The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Rule 11 foll. 28 U.S.C. § 2254 (emphasis added). A petitioner may not seek an appeal of a claim arising out of state court detention unless the petitioner first obtains a certificate of appealability from a district judge or a circuit judge under 28 U.S.C. § 2253. Fed. R. App. P. 22(b). Under 28 U.S.C. § 2253(c)(1), a certificate of appealability will issue only if the petitioner makes a substantial showing of the denial of a constitutional right.

Upon due consideration, the Court concludes a certificate of appealability should not issue because the Court has not issued a final order and therefore Petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, the Court declines to issue a certificate of appealability, and DENIES Petitioner's motion. [Doc. No. 8.]

IT IS SO ORDERED.

20120529

© 1992-2012 VersusLaw Inc.



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