Opinion
No. CIV S-05-2581-DFL-CMK-P.
February 26, 2007
ORDER
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner's request for a certificate of appealability (Doc. 8), filed on August 15, 2006.
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's August 4, 2006, summary dismissal of his application for a writ of habeas corpus. Before petitioner can appeal this decision, a certificate of appealability must issue. See 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). The court must either issue a certificate of appealability indicating which issues satisfy the required showing or must state the reasons why such a certificate should not issue. See Fed.R.App.P. 22(b). For the reasons set forth in the magistrate judge's April 7, 2006, findings and recommendations, petitioner has not made a substantial showing of the denial of a constitutional right. Specifically, because petitioner had a full and fair opportunity to litigate the Fourth Amendment claims presented in the instant petition in state court, he may not re-litigate those claims here. See Stone v. Powell, 428 U.S. 465, 494 (1976); Gordan v. Duran, 895 F.2d 610, 613 (9th Cir. 1990); Siripongs v. Calderon, 35 F.3d 1308 (9th Cir. 1994).
Accordingly, IT IS HEREBY ORDERED that petitioner's request for a certificate of appealability is denied.