White v. Norris

Filing 14

ORDER denying Motion for Certificate of Appealability. Signed by Magistrate Judge Beth Deere on 5/25/10. (dac)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION J A M E S WHITE A D C #136671 v. CASE NO.: 5:09CV00306 BD P E T IT IO N E R

R A Y HOBBS, Interim Director, A r k a n s a s Department of Correction ORDER

R ESPON D EN T

O n April 22, 2010, this Court denied Petitioner's application for a writ of habeas c o rp u s under 28 U.S.C. § 2254. Now pending is Petitioner's motion for certificate of a p p e a la b ility ("COA") (docket entry #13).1 For the following reasons, this motion is D E N IE D . T itle 28 U.S.C. § 2253 limits the right of appeal in habeas corpus proceedings w h e n the petitioner's detention arises out of process issued by a State court. 28 U.S.C. § 2253(c)(1)(A); Slack v. McDaniel, 529 U.S. 473, 482, 120 S.Ct. 1595, 1603 (2000). The Court may issue a COA only if a petitioner has made a "substantial showing of the d e n ia l of a constitutional right." 28 U.S.C. § 2253(c)(2). When a court denies a habeas p e titio n on procedural grounds, as here, the petitioner must also show "that jurists of re a s o n would find it debatable whether the district court was correct in its procedural ru lin g ." Jimenez v. Quarterman, 129 S.Ct. 681, 684 (2009) (quoting Slack, 529 U.S. at

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The motion for certificate of appealability is part of Petitioner's notice of appeal

(# 1 3 ).

484). The Court of Appeals for the Eighth Circuit has held the standard for issuance of a C O A to be a "modest standard." Randolph v. Kemna, 276 F.3d 401, 403 n. 1 (8th Cir. 2 0 0 2 ) (quoting Charles v. Hickman, 228 F.3d 981, 982 n. 1 (9th Cir. 2000)). In this case, the Petitioner has not made a substantial showing and, in fact, has not m a d e even a modest showing, that he was deprived of a constitutional right. The Court d id not reach the merits of this petition because Petitioner not only procedurally defaulted h is claims, but he also failed to timely file his petition. Petitioner's justification for the p ro c e d u ra l failure does not excuse procedural default. Regarding the timeliness of the p e titio n , and despite Petitioner's argument to the contrary, his petition was not filed one d a y before the end of the one-year limitations period. Because Petitioner has failed to p re s e n t a basis for the Court to issue a certificate of appealability, his motion for c e rtif ic a te of appealability (#13) is denied. IT IS SO ORDERED, this 25th day of May, 2010.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

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