King v. Ryan, et al

Filing 105

ORDER RE: CERTIFICATE OF APPEALABILITY for the reasons set forth in its order of 7/1/09 102 , that reasonable jurists could not debate its application of Rule 60(b) to Petitioner's challenges to the Court's dismissal of Claim 7 on procedur al grounds and that the issues involved are not adequate to deserve encouragment to proceed further. Accordingly, IT IS HEREBY ORDERED that Petitioner's motion for a certificate of appealability 104 is denied. Signed by Judge Robert C Broomfield on 8/10/09. (TLJ)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Eric John King, Petitioner, v. Charles L. Ryan, et al., Respondents. ) No. CV-98-1277-PHX-RCB ) ) DEATH PENALTY CASE ) ) ) ) ORDER RE: CERTIFICATE OF ) APPEALABILITY ) ) ) )

Before the Court is Petitioner's motion (Dkt. 104) for a certificate of appealability concerning the denial of his motion for relief pursuant to Rule 60(b). Rule 22(b) of the Federal Rules of Appellate Procedure provides that when an appeal is taken by a petitioner, the district judge who rendered the judgment shall either issue a certificate of appealability or state the reasons why such a certificate should not issue. 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 petition 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)). The Court finds, for the reasons set forth in its order of July 1, 2009 (Dkt. 102), that reasonable jurists could not debate its application of Rule 60(b) to Petitioner's challenges to

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the Court's dismissal of Claim 7 on procedural grounds and that the issues involved are not adequate to deserve encouragement to proceed further. Accordingly, IT IS HEREBY ORDERED that Petitioner's motion for a certificate of appealability (Dkt. 104) is denied. DATED this 10th day of August, 2009.

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