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Gallegos v. McEwen

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
Jul 11, 2012
NO. CV 11-5195 GW (FMO) (C.D. Cal. Jul. 11, 2012)

Opinion

NO. CV 11-5195 GW (FMO)

07-11-2012

JOSE M. GALLEGOS, Petitioner, v. LELAND MCEWEN, Warden, Respondent.


ORDER DENYING CERTIFICATE OF APPEALABILITY

Contemporaneously with the filing of this Order, Judgment has been entered dismissing the Petition for Writ of Habeas Corpus in this action. Under the Antiterrorism and Effective Death Penalty Act, a state prisoner seeking to appeal a district court's final order in a habeas corpus proceeding must obtain a Certificate of Appealability ("COA") from the district judge or a circuit judge. 28 U.S.C. § 2253(c)(1)(A). A COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2); accord Williams v. Calderon, 83 F.3d 281, 286 (9th Cir.), cert. denied, 517 U.S. 1183 (1996). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 1034 (2003); see also Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 1603-04 (2000).

When a district court has dismissed a petition on procedural grounds, the reviewing court should apply a two-step analysis, and a COA should issue if the petitioner can show both: (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[.]" Slack, 529 U.S. at 478, 120 S.Ct. at 1600-01.

The Court dismissed the Petition with prejudice because the Petition is time-barred under 28 U.S.C. § 2244(d). The Petition was filed over six months after the expiration of the statute of limitations. Given the fact that the Petition was clearly untimely, petitioner cannot make the requisite showing "that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 478, 120 S.Ct. at 1600-01.

Based on the foregoing, IT IS ORDERED that a Certificate of Appealability is denied.

______________

GEORGE H. WU

UNITED STATES DISTRICT JUDGE


Summaries of

Gallegos v. McEwen

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
Jul 11, 2012
NO. CV 11-5195 GW (FMO) (C.D. Cal. Jul. 11, 2012)
Case details for

Gallegos v. McEwen

Case Details

Full title:JOSE M. GALLEGOS, Petitioner, v. LELAND MCEWEN, Warden, Respondent.

Court:UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Date published: Jul 11, 2012

Citations

NO. CV 11-5195 GW (FMO) (C.D. Cal. Jul. 11, 2012)