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Jorge Lopez v. M. D. Mcdonald

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


September 25, 2012

JORGE LOPEZ, PETITIONER,
v.
M. D. MCDONALD, RESPONDENT.

The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge

ORDER

Petitioner, a state prisoner proceeding pro se, has filed a notice of appeal of this court's June 29, 2012 dismissal of his application for a writ of habeas corpus on the ground of untimeliness. Before petitioner can appeal this decision, a certificate of appealability must issue.

28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). On September 24, 2012, the Ninth Circuit Court of Appeals remanded the matter to the district court for the limited purpose of granting or denying a certificate of appealability. Lopez v. McDonald, No. 12-16750 (9th Cir., Order dated Sept. 24, 2012). The parties have consented to this court's jurisdiction.

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).

Where, as here, the petition was dismissed on procedural grounds, a certificate of appealability "should issue if the prisoner can show: (1) 'that jurists of reason would find it debatable whether the district court was correct in its procedural ruling'; and (2) 'that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.'" Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

After careful review of the entire record herein, this court finds that petitioner has not satisfied the first 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 time-barred under 28 U.S.C. § 2244. Accordingly, a certificate of appealability should not issue in this action.

IT IS SO ORDERED.

20120925

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