Craig v. Norris

Filing 14

ORDER denying Motion for Certificate of Appealability. Signed by Magistrate Judge Beth Deere on 6/24/10. (dac)

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IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION J O H N N Y LEE CRAIG A D C # 091725 v. CASE NO.: 5:09CV00348 BD PETITIONER R A Y HOBBS, Interim Director, A r k a n s a s Department of Correction ORDER RESPONDENT O n April 27, 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 1 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, Petitioner has not made even a modest showing that he was deprived o f a constitutional right. This Court did not reach the merits of the petition because P e titio n e r failed to timely file his petition. Petitioner did not provide any justification for h is failure to timely file. In addition, Petitioner has not stated why he disagrees with the C o u rt's limitations finding or how the Court should have calculated his one-year lim ita tio n s period. Because Petitioner has failed to present a basis for the Court to issue a c e rtif ic a te of appealability, his motion for certificate of appealability (#13) is denied. IT IS SO ORDERED, this 24th day of June, 2010. ___________________________________ U N IT E D STATES MAGISTRATE JUDGE 2

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