The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
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of the denial of a constitutional right, a demonstration that, under Barefoot [v. Estelle, 463 U.S. 880, 894 (1983), superseded on other grounds by 28 U.S.C. § 2253(c)(2)], includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition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.
© 1992-2012 VersusLaw ...