Norman v. United States of America (INMATE3)

Filing 42

ORDER that on April 5, 2010 (Doc. #38), the petitioner filed a Notice of Appeal which the Court construes to contain a Motion for Certificate of Appealability; denying Motion for Certificate of Appealability. Signed by Hon. Chief Judge Mark E. Fuller on 05/20/10. (ydw, )

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION A L P H O N S O NORMAN, #11288-02, P e titio n e r, v. U N IT E D STATES OF AMERICA,, R e sp o n d e n t. ) ) ) ) ) ) ) )

C A S E NO. 2:07-cv-0893-MEF WO

ORDER
O n April 5, 2010 (Doc. #38), the petitioner filed a Notice of Appeal which the C o u rt construes to contain a Motion for Certificate of Appealability. In April 1996, 28 U.S.C.A. § 2253 was amended to provide that a "certificate of a p p e a la b ility" rather than a "certificate of probable cause" is necessary before a petitioner m a y pursue an appeal in a habeas corpus proceeding. To obtain a certificate of a p p e a la b ility, the prisoner must make a "substantial showing of the denial of a c o n s titu tio n a l right." 28 U.S.C.A. § 2253(c)(2).1 The court finds that the petitioner has f a ile d to make a "substantial showing of the denial of a constitutional right." 28 U.S.C.A.

The standard for a certificate of appealability is that the defendant must "make a 'substantial showing of the denial of [a] federal right.'" Barefoot v. Estelle, 463 U.S. 880, 893 (1983) (quoting Stewart v. Beto, 454 F.2d 268, 270 n.2 (5th Cir. 1971), cert. denied, 406 U.S. 925, (1972)). The Supreme Court further explained that "'in requiring a "question of some substance," or a "substantial showing of the denial of [a] federal right," obviously the defendant need not show that he should prevail on the merits. He has already failed in that endeavor. 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. at 893 n.4, (quoting Gordon v. Willis, 516 F. Supp. 911, 913 (N.D.Ga. 1980).

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§ 2253 (c)(2). Accordingly, it is ORDERED that petitioner's request for a certificate of a p p e a la b ility is DENIED. D O N E this the 20th day of May, 2010.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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