Opinion
No. CIV S-04-1357 FCD KJM P.
September 23, 2005
ORDER
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's August 19, 2005 dismissal of his application for a writ of habeas corpus. Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed.R.App.P. 22(b).
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). When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a certificate of appealability should issue when the prisoner shows that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that 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). The certificate of appealability must "indicate which specific issue or issues satisfy" the above requirements. 28 U.S.C. § 2253(c)(3).
For the reasons set forth in the magistrate judge's June 30, 2005 findings and recommendations, jurists of reason would not find it debatable whether petitioner's application was properly dismissed. Accordingly, a certificate of appealability should not issue in this action.
IT IS SO ORDERED.