Opinion
Case No.: 16-cv-0161-JLS (BLM)
03-09-2017
LEONARD SALDANA, Petitioner, v. NEIL MCDOWELL, Warden, Respondent.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Presently before the Court is the case of Leonard Saldana v. Neil McDowell. The Court has adopted Magistrate Judge Barbara Lynn Major's Report and Recommendation and concluded that Petitioner's claims are time-barred. (ECF No. 32.)
Rule 11(a) governing Section 2254 and 2255 cases establishes that a "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." See 28 U.S.C. § 2254. A certificate of appealability is authorized "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (2008). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000).
In the present case, Judge Major carefully and thoroughly addressed the underlying Motion to Dismiss the Petition, and Petitioner's Opposition to the same. (ECF No. 20.) This Court considered Petitioner's Objection to Judge Major's Report and Recommendation, (ECF No. 32), and concluded that Petitioner's case is unquestionably time barred and that Petitioner provided no new evidence to support his theory of actual innocence. Given the foregoing, the Court also concludes that no jurist of reason could either disagree with this resolution or conclude that the issues presented are adequate to deserve encouragement to proceed further.
The Court therefore DENIES a certificate of appealability.
IT IS SO ORDERED. Dated: March 9, 2017
/s/_________
Hon. Janis L. Sammartino
United States District Judge