Swift v. Norris

Filing 18

(DISREGARD - DUPLICATE OF ENTRY 17) - ORDER DENYING 15 Petitioner's Motion for Certificate of Appealability for the reasons previously stated in the Proposed Findings & Recommended Disposition & the Order denying Plaintiff's petition. Pe titioner has failed to make a substantial showing of the denial of a constitutional right & has failed to provide the Court with any evidence which was not previously considered in his original petition. Signed by Judge James M. Moody on 9/9/08. (jct) (docket entry modified on 9/9/2008 to indicate it is a duplicate of Entry 17)(bfw).

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION DAVID SWIFT, SR. ADC #107092 V. LARRY NORRIS, Director of the Arkansas Department of Correction ORDER Pending is Petitioner's Notice of Appeal and Application for Certificate of Appealability. The Court will consider the motion for certificate of appealability under 22(b) of the Federal Rules of Appellate Procedure and 28 U.S.C. § 2253(c). In order for this Court to grant a certificate of appealability, the petitioner must make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Tiedeman v. Benson, 122 F.3d 518 (8th Cir. 1997). A "substantial showing" is one in which a petitioner demonstrates that his "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.'" Barefoot v. Estelle, 463 U.S. 880, 893 (1983)(discussing necessary showing under previous law dealing with certificates of probable cause). In this case, Petitioner has failed to make such a substantial showing of the denial of a constitutional right. Petitioner has failed to provide the Court with any evidence which was not previously considered in his original petition. Accordingly, for the reasons previously stated in the Proposed Findings and Recommended Disposition and the Order denying Plaintiff's petition, the Motion for Certificate of Appealability (Docket # 15) should be, and hereby is, DENIED. 5:06CV00268 RESPONDENT PETITIONER

IT IS SO ORDERED this 9th day of September, 2008.

______________________________ James M. Moody United States District Judge

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