Opinion
No. 2:12-cv-188 CKD P
08-27-2012
KENNETH E. STEVENSON, Petitioner, v. CONNIE GIPSON, Respondent.
ORDER
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's June 28, 2012 dismissal of his application for a writ of habeas corpus as successive under U.S.C. § 2244(b). Before petitioner can appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). On August 23, 2012, the Ninth Circuit Court of Appeals remanded the matter to the district court for the limited purpose of granting or denying a certificate of appealability. Stevenson v. Gipson, No. 12-16751 (9th Cir., Order dated Aug. 23, 2012.) The parties have consented to this court's jurisdiction.
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).
Where, as here, the petition was dismissed on procedural grounds, a certificate of appealability "should issue if the prisoner can show: (1) 'that jurists of reason would find it debatable whether the district court was correct in its procedural ruling'; and (2) 'that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.'" Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
After careful review of the entire record herein, this court finds that petitioner has not satisfied the first requirement for issuance of a certificate of appealability in this case. Specifically, there is no showing that jurists of reason would find it debatable whether the petition was successive under 28 U.S.C. § 2244(b). Accordingly, a certificate of appealability should not issue in this action.
IT IS SO ORDERED.
____________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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