Opinion
No. ED CV 13-00625-VBF (VBK)
06-30-2014
LEE ANDER TILLMAN, Petitioner, v. E. VALENZUELA, Respondent.
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF UNITED STATES
MAGISTRATE JUDGE
DENYING A CERTIFICATE OF
APPEALABILITY
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus ("Petition"), the records and files herein, and the Report and Recommendation of the United States Magistrate Judge ("Report"). Further, the Court has engaged in de novo review of those portions of the Report to which Petitioner has objected.
IT IS ORDERED that: (1) the Court accepts the findings and recommendations of the Magistrate Judge, and (2) the Court declines to issue a Certificate of Appealability ("COA").
Under 28 U.S.C. §2253(c)(2), a COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." To obtain a COA under §2253©, petitioner must show that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further'." Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595 (2000)(internal quotation marks omitted); see also Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S. Ct. 1029 (2003).
In practice,"[i]t is a 'rare step' for a district court to issue a COA," McDaniels v. McGrew, 2013 WL 4040058, *3 (C.D. Cal. Aug. 8, 2013) (Fairbank, J.) (quoting Murden v. Artuz, 497 F.3d 178, 199 (2d Cir. 2007) (Hall, J., concurring in judgment)); accord Ruiz v. US, 2014 WL 1487742, *8 (E.D. Cal. Apr. 15, 2014) ("The issuance of a COA is 'a rare step.'") (likewise quoting concurrence in Murden). After review of Petitioner's contentions herein, this Court concludes that Petitioner has not made a substantial showing of the denial of a constitutional right, as is required to support the issuance of a COA.
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VALERIE BAKER FAIRBANK
SENIOR UNITED STATES DISTRICT JUDGE