Opinion
No. CIV S-06-0565 LKK KJM P.
August 15, 2007
ORDER
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's July 30, 2007 dismissal of his application for a writ of habeas corpus. Before petitioner can appeal this decision, a certificate of appealability must issue. 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). When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a certificate of appealability should issue when the prisoner shows that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The certificate of appealability must "indicate which specific issue or issues satisfy" the above requirements. 28 U.S.C. § 2253(c)(3).
For the reasons set forth in the magistrate judge's May 2, 2007 findings and recommendations, and this court's July 30, 2007 order, jurists of reason would not find it debatable whether petitioner's application was properly dismissed. Accordingly, a certificate of appealability should not issue in this action.
IT IS SO ORDERED.