UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
October 18, 2012
GEORGE NEOTTI, WARDEN,
The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER DENYING PETITIONER'S APPLICATION FOR CERTIFICATE OF APPEALABILITY
On August 31, 2011, Steve Harrington ("Petitioner"), a California state prisoner proceeding pro se andin forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his conviction for first degree residential burglary on the grounds that jury misconduct denied Petitioner due process and a fair trial. (Doc. No. 1 at 6.) On January 24, 2012, George Neotti ("Respondent") filed a response in opposition. (Doc. No. 7.) On March 6, 2012, Petitioner filed a traverse to the petition for writ of habeas corpus. (Doc. No. 9.) On July 25, 2012, the magistrate judge issued a report and recommendation to deny the petition. (Doc. No. 12.) On August 16, 2012, Petitioner filed an objection to the magistrate judge's report and recommendation. (Doc. No. 14.) On September 14, 2012, the Court dismissed the petition for failure to comply with 28 U.S.C. § 2254. (Doc. No. 16.) On October 16, 2012, Petitioner filed an application for a certificate of appealability in this Court. (Doc. Nos. 17-18.)
A petitioner may not seek an appeal of a claim arising out of state court detention unless petitioner first obtains a certificate of appealability from a district judge or a circuit judge. 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability will issue only if the petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To obtain a certificate of appealability when a district court has denied the habeas corpus petition on procedural grounds, the petitioner must make a substantial showing (1) that reasonable jurists could debate whether the petition should have been resolved differently; and (2) that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). A court need not address both showings if one showing is defective. Id. at 485.
After reviewing the Court's order, and considering the points raised in Petitioner's application for a certificate of appealability, the Court concludes that Petitioner has failed to make a substantial showing of the denial of a constitutional right.
Based on the foregoing, the Court DENIES Petitioner's application for a certificat of appealability
IT IS SO ORDERED.
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