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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

CRAIG CHAN,

Petitioner,

 vs.

KEN CLARK, Warden,

Respondent. 

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No. C 08-4064 JSW (PR)

ORDER DENYING

CERTIFICATE OF

APPEALABILITY

(Docket no. 21)

Petitioner, a prisoner of the State of California, filed a pro se petition for a writ of

habeas corpus under 28 U.S.C. § 2254 . In an order dated November 17, 2009, this

Court dismissed the petition as untimely (docket no. 19). Petitioner has filed a notice of

appeal (docket no. 21). 

Upon the filing of a notice of appeal and a request for a COA, the district court

shall indicate which specific issue or issues satisfy the standard for issuing a certificate,

or state its reasons why a certificate should not be granted. See United States v. Asrar,

116 F.3d 1268, 1270 (9th Cir. 1997) (citing 28 U.S.C. § 2253(c)(3)). A judge shall grant

a COA “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). 

“Determining whether a COA should issue where the petition was dismissed on

procedural grounds has two components, one directed at the underlying constitutional

claims and one directed at the district court’s procedural holding.” Slack v. McDaniel,

529 U.S. 473, 484-85 (2000). “When the district court denies a habeas petition on

procedural grounds without reaching the prisoner’s underlying constitutional claim, a

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COA should issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional right

and that jurists of reason would find it debatable whether the district court was correct in

its procedural ruling.” Id. at 484; see James v. Giles, 221 F.3d 1074, 1077 (9th Cir.

2000). As each of these components is a “threshold inquiry,” the federal court “may find

that it can dispose of the application in a fair and prompt manner if it proceeds first to

resolve the issue whose answer is more apparent from the record and arguments.” Slack,

529 U.S. at 485. Supreme Court jurisprudence “allows and encourages” federal courts to

first resolve the procedural issue. See id. 

Petitioner has not established that “jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Id. at 484. Accordingly,

the request for a certificate of appealability is DENIED (docket no. 21). The Clerk of

Court shall forward this order, along with the case file, to the United States Court of

Appeals for the Ninth Circuit. United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir.

1997). 

IT IS SO ORDERED.

DATED: June 17, 2010

 JEFFREY S. WHITE

United States District Judge

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UNITED STATES DISTRICT COURT

FOR THE 

NORTHERN DISTRICT OF CALIFORNIA

CRAIG CHAN,

Plaintiff,

 v.

KEN CLARK et al,

Defendant. /

Case Number: CV08-04064 JSW 

CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District

Court, Northern District of California.

That on June 17, 2010, I SERVED a true and correct copy(ies) of the attached, by placing said

copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing

said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery

receptacle located in the Clerk's office.

Craig Chan T-42674

P.O. Box 5244

Corcoran, CA 93212-5244

Dated: June 17, 2010

Richard W. Wieking, Clerk

By: Jennifer Ottolini, Deputy Clerk

Case 3:08-cv-04064-JSW Document 25 Filed 06/17/10 Page 3 of 3