Opinion
Case No. 3:07CV225.
January 8, 2008
REPORT AND RECOMMENDATIONS
Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendations.
This matter is before the Court upon Petitioner's Motion for Certificate of Appealibility (Doc. # 12), and his first and second motions for leave to appeal in forma pauperis. (Doc. #11 and #13).
28 U.S.C. § 2253 as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (Pub.L. No 104-132, 110 Stat. 1214) (the "AEDPA"), provides in pertinent part:
(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; or
(B) the final order in a proceeding under section 2255.
(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).
A person in custody upon a state conviction seeking to appeal an adverse ruling on a petition for writ of habeas corpus in the district court must obtain a certificate of appealability before proceeding. 28 U.S.C. § 2253; Fed.R.App.P. 22. To obtain a certificate of appealability, a petitioner must show at least that "jurists of reason would find it debatable whether the petition states a valid claim of denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1604, 146 L. Ed. 2d 542 (2000). If the district court dismisses the petition on procedural grounds without reaching the constitutional questions, the petitioner must also show that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 120 S. Ct. at 1604. The procedural issue should be decided first so as to avoid unnecessary constitutional rulings. Slack, 120 S. Ct. at 1604, citing Ashwander v. TVA, 297 U.S. 288, 347, 56 S. Ct. 466, 80 L. Ed. 688 (1936) (Brandeis, J., concurring). The first part of this test is equivalent to making a substantial showing of the denial of a constitutional right, including showing that reasonable jurists could debate whether 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, 120 S. Ct. 1595, 1604 (2000), quoting Barefoot v. Estelle, 463 U.S. 880, 893, 103 S. Ct. 3383, 77 L. Ed. 2d 1090 (1983).
The standard is higher than the absence of frivolity required to permit an appeal to proceed in forma pauperis. Id. at 893.
Obviously the petitioner need not show that he should prevail on the merits . . . Rather, he must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are 'adequate to deserve encouragement to proceed further.'Id. n. 4.
District courts have the power to issue certificates of appealability under the AEDPA in § 2254 cases. Lyons v. Ohio Adult Parole Authority, 105 F. 3d 1063 (6th Cir. 1997); Hunter v. United States, 101 F. 3d 1565 (11th Cir. 1996) (en banc). Likewise, district courts are to be the initial decisionmakers on certificates of appealability under § 2255. Kincade v. Sparkman, 117 F. 3d 949 (6th Cir. 1997) (adopting analysis in Lozada v. United States, 107 F. 3d 1011, 1017 (2d Cir. 1997)
For the reasons set forth in the Report and Recommendations filed on July 11, 2007, Petitioner's claims are without merit. This conclusion would be reached by any objectively reasonable jurist. The issues presented are not adequate to deserve encouragement to proceed further. Petitioner should be denied a certificate of appealability and permission to proceed on appeal in forma pauperis. ACCORDINGLY, IT IS RECOMMENDED THAT:
1. Petitioner's Motion for Certificate of Appealibility (Doc. # 12) be DENIED;
2. Petitioner's first and second motions to proceed in forma pauperis (Doc. # 11 and 13) be DENIED; and,
3. This case remains terminated on the docket of this court.
NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within ten days after being served with this Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is extended to thirteen days (excluding intervening Saturdays, Sundays, and legal holidays) because this Report is being served by mail. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendations are based in whole or in part upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond to another party's objections within ten days after being served with a copy thereof.Failure to make objections in accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).