Velcoff v. Norris

Filing 20

ORDER denying 17 Motion for Certificate of Appealability; denying as moot without prejudice to resubmission to the Court of Appeals 18 Motion to Appoint Counsel and 19 Motion for Leave to Appeal in forma pauperis. Signed by Magistrate Judge Jerry W. Cavaneau on 9/11/09. (dac)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION JACQUELINE VELCOFF ADC #708561 V. NO. 5:09cv00053 JWC RESPONDENT PETITIONER

LARRY NORRIS, Director, Arkansas Department of Correction ORDE R

By judgment entered July 20, 2009 (doc. 15), this 28 U.S.C. § 2254 petition for writ of habeas corpus was dismissed. Petitioner has filed a pro se notice of appeal (doc. 17), which has been construed as a request for a certificate of appealability. Before a federal habeas petitioner may proceed with an appeal, he must obtain a certificate of appealability (COA) from a district or circuit judge. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003) (COA is jurisdictional prerequisite to an appeal). To be entitled to a COA, the petitioner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). He must indicate which issues satisfy the showing. Id. § 2253(c)(3). A substantial showing is a demonstration that reasonable jurists could debate whether the petition should have been resolved in a different manner, or that the issues presented deserve further proceedings. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Here, the Court found that all of Petitioner's claims were procedurally barred and that she had not demonstrated cause and prejudice, or actual innocence (doc. 14). Petitioner's application makes no showing, much less a "substantial" showing, that

reasonable jurists would differ as to this Court's rejection of the claims or that they are otherwise entitled to further review. Petitioner's request for a certificate of appealability (doc. 17) is denied. The Clerk is directed to send this order to the Eighth Circuit Court of Appeals in accordance with Fed. R. App. P. 22(b)(1). Petitioner's motions for appointment of counsel on appeal (doc. 18) and to proceed in forma pauperis on appeal (doc. 19) are denied as moot, without prejudice to resubmission to the Court of Appeals. IT IS SO ORDERED this 11th day of September, 2009.

UNITED STATES MAGISTRATE JUDGE

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