Beaty, et al v. Schriro, et al

Filing 351

ORDER DENYING CERTIFICATE OF APPEALABILITY - IT IS ORDERED denying issuance of a certificate of appealability re 350 Notice of Appeal; this Court is without jurisdiction in the matter. Signed by Judge Susan R Bolton on 8/31/10.SAT)

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Beaty, et al v. Ryan, et al Doc. 351 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Donald Edward Beaty, Petitioner, vs. Charles L. Ryan, et al., Respondents. ) ) ) ) ) ) ) ) ) ) ) No. CV-92-2076-PHX-SRB DEATH PENALTY CASE ORDER DENYING CERTIFICATE OF APPEALABILITY In this terminated habeas action the Court has denied relief, the Ninth Circuit has affirmed, the Supreme Court has denied certiorari, and the mandate has issued. (See Dkts. 333, 336); Beaty v. Ryan, 130 S. Ct. 364 (2009). Following issuance of the mandate, Petitioner moved the Court to issue an Order that would assist his factual development of a future state clemency application he plans to file. (Doc. 343.) Noting lack of jurisdiction, the Court denied Petitioner's motion, and denied reconsideration. (See Doc. 346, 349.) Petitioner has noticed an appeal to the Ninth Circuit regarding the Court's Orders. (Doc. 350.) The Court has evaluated these Orders for suitability for issuance of a certificate of appealability. See 28 U.S.C. 2253(c); Fed. R. App. P. 22(b)(1); Rule 11(a), 28 U.S.C. foll. 2254. Rule 22(b) of the Federal Rules of Appellate Procedure provides that an applicant cannot take an appeal unless a certificate of appealability has been issued by an appropriate judicial officer. Rule 11(a), 28 U.S.C. foll. 2254, provides that the district judge must either issue or deny a certificate of appealability when it enters a final order adverse to the Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 applicant. If a certificate is issued, the court must state the specific issue or issues that satisfy 28 U.S.C. 2253(c)(2). Pursuant to 28 U.S.C. 2253(c)(2), a certificate of appealability may issue only when the petitioner "has made a substantial showing of the denial of a constitutional right." This showing can be established by demonstrating that "reasonable jurists could debate whether (or, for that matter, agree that) the matter should have been resolved in a different manner" or that the issues were "adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)). In this case, where the Court has determined that it lacks subject matter jurisdiction over a motion, however, it also lacks jurisdiction to grant a certificate of appealability. Cf. Williams v. Chatman, 510 F.3d 1290, 1294-95 (11th Cir. 2007) (stating that if the district court lacked subject matter jurisdiction over a FED.R.CIV.P. 60(b) motion, it also lacked jurisdiction to grant a certificate of appealability). Accordingly, IT IS HEREBY ORDERED denying issuance of a certificate of appealability (Doc. 350); this Court is without jurisdiction in the matter. DATED this 31st day of August, 2010. -2-

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