Opinion
No. 2:12-cv-0296 LKK DAD P
07-11-2012
CARL D. MITCHELL, Petitioner, v. WARDEN CALVIN CHAPPELL, Respondents.
ORDER
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's March 21, 2012 dismissal of his application for a writ of habeas corpus without prejudice to its refiling upon obtaining authorization from the United States Court of Appeals for the Ninth Circuit. On June 20, 2012, this matter was remanded to this court for the limited purpose of granting or denying a certificate of appealability. See Order filed June 20, 2012 (citing 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997)).
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)).
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 filed in this action is a second or successive petition and that petition has not obtained from the court of appeals the authorization required to proceed. Accordingly, a certificate of appealability should not issue in this action.
IT IS SO ORDERED.
____________________________
LAWRENCE K. KARLTON
SENIOR JUDGE
UNITED STATES DISTRICT COURT