Opinion
2:11-cv-00649-PMP-GWF.
May 6, 2011
ORDER
Petitioner, a Nevada state prisoner, has filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has failed to either pay the filing fee or submit an application to proceed in forma pauperis. Moreover, pursuant to the Rules Governing Habeas Cases, Rule 4, the court has reviewed the petition and finds that it must be denied for failure to state a claim for which relief may be granted.
Petitioner lists under "Ground 1" that his state court conviction is unconstitutional, in violation of his right to "get a law suit," and under "Ground 2" he lists as facts: "they or [sic] not treating me with respect I want a law suit on all grounds . . ." He sets forth no other factual allegations for this petition. Accordingly, this petition must be denied for failure to state a claim for which relief may be granted.
In order to proceed with an appeal, petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed.R.App.P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make "a substantial showing of the denial of a constitutional right" to warrant a certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). "The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. (quoting Slack, 529 U.S. at 484). In order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are debatable among jurists of reason; that a court could resolve the issues differently; or that the questions are adequate to deserve encouragement to proceed further. Id.
Pursuant to the December 1, 2009 amendment to Rule 11 of the Rules Governing Section 2254 and 2255 Cases, district courts are required to rule on the certificate of appealability in the order disposing of a proceeding adversely to the petitioner or movant, rather than waiting for a notice of appeal and request for certificate of appealability to be filed. Rule 11(a). This court denies petitioner a certificate of appealability.
IT IS THEREFORE ORDERED that this petition for writ of habeas corpus is DENIED. No certificate of appealability shall issue.
IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT and to close this case.