Opinion
CASE NO. C08-1371JLR.
October 29, 2009
ORDER
This matter comes before the court on Petitioner Hector Francisco Diaz's motion for a certificate of appealability under 28 U.S.C. § 2253(d) (Dkt. # 29). Mr. Diaz seeks to appeal the court's August 10, 2009 order denying his 28 U.S.C. § 2255 motion (Dkt. # 26). For the reasons stated below, the court DENIES the motion for a certificate of appealability (Dkt. # 29).
Among the substantial changes to federal habeas corpus procedure in the Antiterrorism and Effective Death Penalty Act of 1996 is a rule that a petitioner can appeal the denial of a 28 U.S.C. § 2255 motion only after obtaining a "certificate of appealability." 28 U.S.C. 2253(c). The Ninth Circuit has held that a United States District Court may issue a certificate of appealability. United States v. Asrar, 116 F.3d 1268, 1269 (9th Cir. 1997). A court may issue a certificate of appealability only if the "applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Supreme Court has elaborated that a petitioner must show that "reasonable jurists could debate whether . . . the petition should have been resolved in a different matter or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation omitted).
Here, Mr. Diaz has not made a substantial showing of the denial of a constitutional right or demonstrated that the denial of his 28 U.S.C. § 2255 motion was debatable or wrong. The court therefore DENIES his motion for a certificate of appealability (Dkt. # 29).