Richard v. Norris

Filing 21

ORDER denying Motion for Certificate of Appealability. Signed by Judge Brian S. Miller on 8/21/09. (dac)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION LOUIS E. RICHARD ADC #096904 V. NO. 5:09cv00087 BSM RESPONDENT ORDER The court will construe petitioner's notice of appeal as a motion for a certificate of appealability ("COA"). For the reasons set forth below, the motion is denied. 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). On July 22, 2009, the court denied as untimely the petition for writ of habeas corpus. Based upon well-established and controlling precedent, the court concludes that reasonable PETITIONER LARRY NORRIS, Director, Arkansas Department of Correction 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). Accordingly, petitioner's motion for certificate of appealability (Doc. No. 20) is denied. IT IS SO ORDERED this 21st day of August, 2009. __________________________________ UNITED STATES DISTRICT JUDGE 2

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