Filed: Jun. 20, 2012
Latest Update: Jun. 20, 2012
Summary: ORDER HOWARD D. McKIBBEN, District Judge. This action was on a petition for writ of habeas corpus brought in 1990. Before the Court is an Order remanding the matter from the Ninth Circuit Court of Appeals in order for this Court to determine whether a certificate of appealability should issue. ECF No. 78. On July 23, 1993, this Court entered an order determining that any appeal of the Court's order and judgment would not be taken in good faith. See ECF No. 72, docket #60. In order to procee
Summary: ORDER HOWARD D. McKIBBEN, District Judge. This action was on a petition for writ of habeas corpus brought in 1990. Before the Court is an Order remanding the matter from the Ninth Circuit Court of Appeals in order for this Court to determine whether a certificate of appealability should issue. ECF No. 78. On July 23, 1993, this Court entered an order determining that any appeal of the Court's order and judgment would not be taken in good faith. See ECF No. 72, docket #60. In order to proceed..
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ORDER
HOWARD D. McKIBBEN, District Judge.
This action was on a petition for writ of habeas corpus brought in 1990. Before the Court is an Order remanding the matter from the Ninth Circuit Court of Appeals in order for this Court to determine whether a certificate of appealability should issue. ECF No. 78. On July 23, 1993, this Court entered an order determining that any appeal of the Court's order and judgment would not be taken in good faith. See ECF No. 72, docket #60.
In order to proceed with an appeal from this court, petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1). Generally, a petitioner must make "a substantial showing of the denial of a constitutional right" to warrant a certificate of appealability. Id. The Supreme Court has held that a petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Supreme Court further illuminated the standard for issuance of a certificate of appealability in Miller-El v. Cockrell, 537 U.S. 322 (2003). The Court stated in that case:
We do not require petitioner to prove, before the issuance of a COA, that some jurists would grant the petition for habeas corpus. Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail. As we stated in Slack, "[w]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong."
Id. at 1040 (quoting Slack, 529 U.S. at 484).
The Court has considered the issues raised by petitioner, with respect to whether they satisfy the standard for issuance of a certificate of appeal, and the Court determines that none meet that standard. The Court sees no basis to reevaluate its original determinations as to the validity of an appeal. Accordingly, the Court will deny petitioner a certificate of appealability.
IT IS THEREFORE ORDERED that petitioner is DENIED A CERTIFICATE OF APPEALABILITY.
