Filed: Feb. 06, 2012
Latest Update: Feb. 06, 2012
Summary: MEMORANDUM AND ORDER REGARDING NOTICE OF APPEAL WARREN K. URBOM, Senior District Judge. On January 23, 2012, I dismissed Donnell King's habeas corpus claims and entered judgment against him. (Filing Nos. 25 and 26 .) On January 31, 2012, Donnell King (King), the petitioner, filed a Notice of Appeal. (Filing No. 27 .) However, before King may appeal the dismissal of his Petition Under 18 U.S.C. 2254 for Writ of Habeas Corpus, a "Certificate of Appealability" must issue. Pursuant to the A
Summary: MEMORANDUM AND ORDER REGARDING NOTICE OF APPEAL WARREN K. URBOM, Senior District Judge. On January 23, 2012, I dismissed Donnell King's habeas corpus claims and entered judgment against him. (Filing Nos. 25 and 26 .) On January 31, 2012, Donnell King (King), the petitioner, filed a Notice of Appeal. (Filing No. 27 .) However, before King may appeal the dismissal of his Petition Under 18 U.S.C. 2254 for Writ of Habeas Corpus, a "Certificate of Appealability" must issue. Pursuant to the An..
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MEMORANDUM AND ORDER REGARDING NOTICE OF APPEAL
WARREN K. URBOM, Senior District Judge.
On January 23, 2012, I dismissed Donnell King's habeas corpus claims and entered judgment against him. (Filing Nos. 25 and 26.) On January 31, 2012, Donnell King (King), the petitioner, filed a Notice of Appeal. (Filing No. 27.)
However, before King may appeal the dismissal of his Petition Under 18 U.S.C. § 2254 for Writ of Habeas Corpus, a "Certificate of Appealability" must issue. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the right to appeal such a dismissal is governed by 28 U.S.C. § 2253(c), which states:
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court;. ...
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph(2).1
A certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Such a showing requires a demonstration "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, 484 (2000) (internal quotation marks omitted), citing Barefoot v. Estelle, 463 U.S. 894 (1983) (defining pre-AEDPA standard for a certificate of probable cause to appeal).
King has not filed a motion for a Certificate of Appealability or a brief in support. (See Docket Sheet.) Thus, this matter cannot proceed on appeal until the question of the certificate of appealability is considered.
IT IS THEREFORE ORDERED that:
1. Donnell King shall have until March 6, 2012, to file a motion for Certificate of Appealability and brief in support.
2. In the event that King fails to file a motion and brief, as set forth in this Memorandum and Order Regarding Notice of Appeal, the court will deny the issuance of a Certificate of Appealability without further notice.
3. The clerk of the court is directed to set a pro se case management in this case with the following text: March 6, 2012: check for filing of motion for Certificate of Appealability.
