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Allan Tracy Gilmore v. Terry Gonzalez

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


October 16, 2012

ALLAN TRACY GILMORE,
PETITIONER,
v.
TERRY GONZALEZ, WARDEN,
RESPONDENT.

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

ORDER DENYING MOTION AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY [Doc. No. 22]

Petitioner Allan Tracy Gilmore, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to Title 28 of the United States Code, section 2254, challenging the constitutionality of his conviction on one count of petty theft with a prior. On September 14, 2012, the Court dismissed the petition without prejudice as second or successive in light of the proceedings recorded in Civil Case No. 07cv1823-DMS (JMA). See Doc. No. 19. Petitioner now requests the Court to issue a certificate of appealability. See Doc. No. 22.

Rule 11 of the Federal Rules Governing Section 2254 Cases states that "the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability ("COA") is not issued unless there is "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a petition is, as here, dismissed on procedural grounds, a COA should be granted only if two elements are satisfied: (1) "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right"; and (2) "jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). As each of these components is a "threshold inquiry," the federal court "may find that it can dispose of the application in a fair and prompt manner if it proceeds first to resolve the issue whose answer is more apparent from the record and arguments." Id. at 485. As the Court noted in its order dismissing this action, a second or successive petition may not be filed in this Court unless the petitioner first obtains from the United States Court of Appeals for the Ninth Circuit an order authorizing this Court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). Petitioner has not shown that jurists of reason would find anything debatable in the procedural ruling that the petition is second or successive. Thus, the Court need not decide whether the application states a valid constitutional claim. See Id. at 485.

Accordingly, the Court DENIES Petitioner's motion and DECLINES to issue a certificate of appealability in this case.

IT IS SO ORDERED.

20121016

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