Summary
noting that the denial of full access, "or even limited access to petitioner's legal materials is not an extraordinary situation which would prevent a petitioner from filing his or her petition within a timely manner. Petitioner was not prevented from filing a petition with the court simply declaring that his knowledge and recollection of all necessary facts or arguments may not be complete in order to meet the one-year statue of limitations."
Summary of this case from Smith v. StateOpinion
Case No. C05-5098RBL.
April 12, 2006
ORDER DENYING CERTIFICATE OF APPEALABILITY
This matter comes before the court on the petitioner's Notice of Appeal. Dkt. 28. The court must consider whether to grant or deny the petitioner a Certificate of Appealability. See 28 U.S.C. 2253(c)(3). The court has reviewed the record herein.
PROCEDURAL HISTORY
On January 1, 2006, U.S. Magistrate Judge J. Kelley Arnold issued a Report and Recommendation, concluding that petitioner's habeas petition was time barred under 28 U.S.C. § 2244(d). Dkt. 23. On February 7, 2006, the court adopted the Report and Recommendation and dismissed the petition with prejudice. Dkt. 26. Petitioner has now appealed to the U.S. Court of Appeals for the Ninth Circuit.
STANDARD FOR GRANTING A CERTIFICATE OF APPEALABILITY
The district court should grant an application for a Certificate of Appealability only if the petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). To obtain a Certificate of Appealability under 28 U.S.C. § 2253(c), a habeas petitioner must make a showing that reasonable jurists could debate whether, or agree that, the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 120 S.Ct. 1595, 1603-04 (2000) ( quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). When the court denies a claim on procedural grounds, the petitioner must show 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, 120 S.Ct. at 1604.
DISCUSSION
This court dismissed the petition as time barred under 28 U.S.C. § 2244(d). The case was therefore dismissed on procedural grounds. There is nothing in the record that would support a conclusion that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right. Moreover, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling. The petition for writ of habeas corpus was untimely, and there is no basis for equitably tolling the one year time limit of 28 U.S.C. § 2244(d) .
The Certificate of Appealability should be denied.
Accordingly, it is hereby ORDERED that petitioner's motion for a Certificate of Appealability is DENIED.
The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address.