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Ronald V. Smith v. Scott Frakes

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


June 29, 2012

RONALD V. SMITH, PETITIONER,
v.
SCOTT FRAKES, AND KAMALA D. HARRIS, RESPONDENTS.

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

ORDER

Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's May 10, 2012 dismissal of his application for a writ of habeas corpus for failure to exhaust state remedies. 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 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).

In order to obtain a certificate of appealability where, as here, the petition was dismissed on procedural grounds, a habeas prisoner must make a substantial showing of the denial of a constitutional right, a demonstration that, under Barefoot [v. Estelle, 463 U.S. 880, 894 (1983), superseded on other grounds by 28 U.S.C. § 2253(c)(2)], includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "adequate to deserve encouragement to proceed further." Barefoot, supra, at 893, and n.4, 103 S.Ct. 3383 ("sum[ming] up" the "substantial showing" standard).

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

After careful review of the entire record herein, this court finds that petitioner has not satisfied the requirement for issuance of a certificate of appealability in this case. Specifically, there is no showing that jurists of reason would find it debatable whether the petition was untimely filed. Accordingly, a certificate of appealability (dkt. no. 32) should not issue in this action.

IT IS SO ORDERED.

20120629

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