Opinion
No. 2:06-cv-2790-JAM-JFM (HC).
December 16, 2009
ORDER
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's October 16, 2009 denial of his application for a writ of habeas corpus together with a motion for a certificate of appealability pursuant to 28 U.S.C. § 2253(c).
The thirty day period for filing a notice of appeal expired on November 16, 2009. Petitioner's notice of appeal and motion for certificate of appealability were filed in this court on November 17, 2009. Both documents are dated November 12, 2009, and the certificate of service appended to the notice of appeal is dated November 12, 2009. This court finds that petitioner delivered the notice of appeal to prison officials for mailing on or before November 16, 2009 and, therefore, that the notice of appeal is timely filed. See Houston v. Lack, 487 U.S. 266 (1988).
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. Fed.R.App.P. 22(b).
For the reasons set forth in the magistrate judge's September 11, 2009 findings and recommendations, petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner's November 17, 2009 motion for a certificate of appealability is denied; and
2. The Clerk of the Court is directed to process petitioner's appeal to the United States Court of Appeals for the Ninth Circuit.