The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY [Doc. 24]
On February 22, 2010, the instant petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 was dismissed without prejudice for failure to exhaust the state court remedies, and judgment was entered on February 23, 2010.
On February 25, 2011, Petitioner filed a memorandum of points and authorities in support of the dismissed petition for writ of habeas corpus. On July 5, 2012, the Court disregarded the memorandum of points and authorities as the action was dismissed and judgment was entered.
On September 6, 2012, Petitioner filed a reply to the Court's closing of the habeas petition. On September 12, 2012, the Court disregarded the reply informing Petitioner again that the action had been previously dismissed.
On October 18, 2012, Petitioner filed a motion for an extension of time to file a notice of appeal of the Court's September 12, 2012, order. The motion for an extension of time was granted on October 18, 2012.
On January 3, 2013, the United States Court of Appeals for the Ninth Circuit remanded the case back to this Court for the limited purpose of determining whether a certificate of appealability should be granted or denied.
A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:
(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings.
(c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from--
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the ...