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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Louis Alfonso Melendez,
Petitioner,

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v.

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Warden Greg Fizer,

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Respondent.

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No. CV-05-891-PHX-SMM

ORDER DENYING CERTIFICATE OF
APPEALABILITY

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On July 19, 2013, this Court denied Petitioner’s motion for Fed. R. Civ. P. 60(b)

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relief. (Doc. 38.) Subsequently, Petitioner’s noticed appeal from this Court’s ruling, NOA

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# 13-16776. (Doc. 39.) Pending before the Court is Petitioner’s motion for extension of time

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to request certificate of appealability (Doc. 40) and Petitioner’s application for certificate of

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appealability (Doc. 41).

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Rule 11(a) of the Rules Governing Section 2254 Cases provides that the district judge

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must either issue or deny a certificate of appealability (“COA”) when it enters a final order

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adverse to the applicant. If a certificate is issued, the court must state the specific issue or

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issues that satisfy 28 U.S.C. § 2253(c)(2). Pursuant to 28 U.S.C. § 2253(c)(2), a COA may

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issue only when the petitioner “has made a substantial showing of the denial of a

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constitutional right.” This showing can be established by demonstrating that “reasonable

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jurists could debate whether (or, for that matter, agree that) the petition should have been

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resolved in a different manner” or that the issues were “adequate to deserve encouragement

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to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle,

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463 U.S. 880, 893 & n.4 (1983)).

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The Court finds that reasonable jurists could not debate its resolution of Petitioner’s

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claims that he had a legitimate excuse to the procedural default of his ineffective assistance

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of counsel claims in state court. The question of whether the state court erred in finding

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those claims procedurally defaulted is not debatable among jurists of reason. Similarly, there

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are no debatable facts or legal authority to support that either Martinez v. Ryan, 132 S. Ct.

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1309 (2012) or Maples v. Thomas, 132 S. Ct. 912 (2012) excuse Petitioner’s procedurally

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defaulted claims. (See Doc. 38.) Accordingly, the Court will decline to issue a COA.

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Based on the foregoing,

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IT IS HEREBY ORDERED DENYING Petitioner’s application for certificate of

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appealability. (Doc. 41.) The Clerk of Court shall forward a copy of this Order to the Clerk

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of the Ninth Circuit Court of Appeals.

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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.

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