Melendez v. Fizer

Filing 43

ORDER DENYING CERTIFICATE OF APPEALABILITY, denying Petitioner's application for certificate of appealability 41 ; granting Petitioner's motion for extension of time to request certificate of appealability 40 , re: 13-16776 39 Notice of Appeal.. Signed by Senior Judge Stephen M McNamee on 9/30/13.(REW)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Louis Alfonso Melendez, Petitioner, 10 11 v. 12 Warden Greg Fizer, 13 Respondent. 14 ) ) ) ) ) ) ) ) ) ) ) No. CV-05-891-PHX-SMM ORDER DENYING CERTIFICATE OF APPEALABILITY 15 On July 19, 2013, this Court denied Petitioner’s motion for Fed. R. Civ. P. 60(b) 16 relief. (Doc. 38.) Subsequently, Petitioner’s noticed appeal from this Court’s ruling, NOA 17 # 13-16776. (Doc. 39.) Pending before the Court is Petitioner’s motion for extension of time 18 to request certificate of appealability (Doc. 40) and Petitioner’s application for certificate of 19 appealability (Doc. 41). 20 Rule 11(a) of the Rules Governing Section 2254 Cases provides that the district judge 21 must either issue or deny a certificate of appealability (“COA”) when it enters a final order 22 adverse to the applicant. If a certificate is issued, the court must state the specific issue or 23 issues that satisfy 28 U.S.C. § 2253(c)(2). Pursuant to 28 U.S.C. § 2253(c)(2), a COA may 24 issue only when the petitioner “has made a substantial showing of the denial of a 25 constitutional right.” This showing can be established by demonstrating that “reasonable 26 jurists could debate whether (or, for that matter, agree that) the petition should have been 27 resolved in a different manner” or that the issues were “adequate to deserve encouragement 28 to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 1 463 U.S. 880, 893 & n.4 (1983)). 2 The Court finds that reasonable jurists could not debate its resolution of Petitioner’s 3 claims that he had a legitimate excuse to the procedural default of his ineffective assistance 4 of counsel claims in state court. The question of whether the state court erred in finding 5 those claims procedurally defaulted is not debatable among jurists of reason. Similarly, there 6 are no debatable facts or legal authority to support that either Martinez v. Ryan, 132 S. Ct. 7 1309 (2012) or Maples v. Thomas, 132 S. Ct. 912 (2012) excuse Petitioner’s procedurally 8 defaulted claims. (See Doc. 38.) Accordingly, the Court will decline to issue a COA. 9 Based on the foregoing, 10 IT IS HEREBY ORDERED DENYING Petitioner’s application for certificate of 11 appealability. (Doc. 41.) The Clerk of Court shall forward a copy of this Order to the Clerk 12 of the Ninth Circuit Court of Appeals. 13 14 15 IT IS FURTHER ORDERED GRANTING Petitioner’s motion for extension of time to request certificate of appealability. (Doc. 40.) DATED this 30th day of September, 2013. 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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