Opinion
Case No. CV 05-1656-SVW (RC).
December 20, 2005
ORDER DENYING CERTIFICATE OF APPEALABILITY
On November 14, 2005, petitioner Steven Taylor Earls, aka Steven Earls, aka Steve Taylor Earls, proceeding through counsel, filed a Notice of Appeal and an Application for Certificate of Appealability following the dismissal of his First Amended Petition for writ of habeas corpus on the ground it is untimely. On October 18, 2005, after considering petitioner's objections and making a de novo determination, the Court adopted the Magistrate Judge's Final Report and Recommendation, and Judgment was entered October 24, 2005, dismissing petitioner's First Amended Petition.
DISCUSSION
The petitioner filed his initial habeas corpus petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Section 2244(d), Title 28 U.S.C., as amended by the AEDPA, provides a one-year statute of limitations for the filing of a federal habeas petition by a person in state custody. Here, there are no grounds for this Court to either statutorily toll or equitably toll the AEDPA's statute of limitations, and petitioner's habeas corpus petition was filed more than three years late. Alternatively, the Court found that even if the statute of limitations commenced to run on November 26, 2002, as petitioner urges, the federal habeas petition is still untimely. Thus, petitioner's First Amended Petition was dismissed without the Court reaching the merits of petitioner's claims.This Court finds that the appeal is not taken in good faith, and that petitioner has not made a substantial showing that he has been denied a constitutional right and that this Court was not correct in its statute of limitations ruling, for the reasons set forth in the Final Report and Recommendation, and accordingly, a certificate of appealability should not issue under 28 U.S.C. § 2253(c)(2) and Fed.R.App.P. 22(b). Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000);Manning v. Foster, 224 F.3d 1129, 1132 (9th Cir. 2000).
ORDER
IT IS ORDERED that a Certificate of Appealability be DENIED.