Filed: May 13, 2016
Latest Update: May 13, 2016
Summary: ORDER GARLAND E. BURRELL, Jr. , District Judge . Movant, a federal prisoner proceeding pro se, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. On January 12, 2016, the undersigned adopted the November 17, 2015 findings and recommendations, and granted respondent's motion to dismiss. (ECF No. 151.) Movant filed an appeal. On April 29, 2016, the appellate court directed the district court to grant or deny a certificate of appealability at the court's
Summary: ORDER GARLAND E. BURRELL, Jr. , District Judge . Movant, a federal prisoner proceeding pro se, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255. On January 12, 2016, the undersigned adopted the November 17, 2015 findings and recommendations, and granted respondent's motion to dismiss. (ECF No. 151.) Movant filed an appeal. On April 29, 2016, the appellate court directed the district court to grant or deny a certificate of appealability at the court's ..
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ORDER
GARLAND E. BURRELL, Jr., District Judge.
Movant, a federal prisoner proceeding pro se, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. On January 12, 2016, the undersigned adopted the November 17, 2015 findings and recommendations, and granted respondent's motion to dismiss. (ECF No. 151.) Movant filed an appeal. On April 29, 2016, the appellate court directed the district court to grant or deny a certificate of appealability at the court's earliest convenience. (ECF No. 155.)
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)). This court concludes that jurists of reasonable would not find it debatable whether petitioner requires authorization from the Ninth Circuit Court of Appeals to proceed with a second motion under 28 U.S.C. § 2255. For this reason, and for the reasons stated in the findings and recommendations, the undersigned declines to issue a certificate of appealability for the appeal.
Accordingly, IT IS HEREBY ORDERED that:
1. The court declines to issue the certificate of appealability referenced in 28 U.S.C. § 2253; and
2. The Clerk of the Court is directed to forward the record to the Ninth Circuit Court of Appeals. (ECF No. 155 at 2.)
