No. CIV S-08-1232 FCD DAD P.
June 23, 2009
Petitioner, a state prisoner proceeding pro se, has timely filed a notice of appeal of this court's April 27, 2009 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). 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 March 31, 2009 findings and recommendations, petitioner has not made a substantial showing of the denial of a constitutional right. Accordingly, a certificate of appealability should not issue in this action.
IT IS SO ORDERED.