Blue v. Norris

Filing 44

ORDER denying 43 Motion for Certificate of Appealability. Signed by Judge Brian S. Miller on 12/8/09. (bkp)

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION MARCUS BLUE, ADC # 123200 v. CASE NO. 5:08cv00304 BSM RESPONDENT ORDER Petitioner, Marcus Blue, requests a certificate of appealability ("COA"). The Antiterrorism and Effective Death Penalty Act ("AEDPA") provides that an appeal from the dismissal of a habeas action cannot be taken unless the trial court or the court of appeals grants the prisoner a COA. 28 U.S.C. 2253(c)(1). A COA will issue only when an applicant has "made a substantial showing of the denial of a constitutional right." Winfield v. Roper, 460 F.3d 1026, 1040 (8th Cir. 2006) (quoting 28 U.S.C. 2253(c)(2)). Furthermore, there must be a demonstration that "a reasonable jurist" would find the court's disposition of the constitutional claims or procedural rulings "debatable or wrong." See Tennard v. Dretke, 542 U.S. 274, 276 (2004); see also Khaimov v. Crist, 297 F.3d 783, 785 (8th Cir. 2002). Finally, if a certificate of appealability is granted, the order must "indicate which specific issue or issues" may be challenged on appeal. 28 U.S.C. 2253(c)(3). Based upon well-established and controlling precedent, the court concludes that reasonable jurists would not find the court's rulings to be debatable or wrong. Accordingly, the court will deny petitioner's motion for a COA. If petitioner wishes to appeal the court's dismissal of his habeas action, he must obtain a COA from the Eighth Circuit Court of Appeals pursuant to 28 U.S.C. 2253(c)(1). PETITIONER LARRY NORRIS, Director, Arkansas Department of Correction Accordingly, petitioner's motion for certificate of appealability (Doc. No. 43) is denied. Dated this 8th day of December, 2009. _____________________________________ UNITED STATES DISTRICT JUDGE 2

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