Hammock v. Hobbs
Certificate of Appealability Denied re 16 Notice of Appeal. Signed by Judge Susan Webber Wright on 9/17/10. (dac)
Hammock v. Hobbs
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION
PHILLIP HAMMOCK PETITIONER
NO. 5:10CV00149 SWW
RAY HOBBS, interim Director of the Arkansas Department of Correction
ORDER Before this Court is what has been docketed as petitioner Phillip Hammock's motion for a certificate of appealability [doc.#16].1 This Court has the authority to issue such a certificate. See, e.g., Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997); Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A certificate of appealability certifies that the applicant has made a substantial showing of the denial of a constitutional right, that is, a showing that the issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings. See, e.g., Carson v. Director of the Iowa Dept. of Correctional Services, 150 F.3d 973, 975 (8th Cir. 1998). With respect to claims that are procedurally barred, the Eighth Circuit has summarized the factors to consider when determining whether a certificate of appealability should issue when a habeas claim is denied on
Although this same day the Court denied the motion as moot pursuant to Doc.#13, the Court issues this Order elaborating on the standards the Court utilized in addressing petitioner's motion. The Court vacates the denial as moot and issues this order instead.
procedural grounds: "(1) if the claim is clearly procedurally defaulted, the certificate should not be issued; (2) even if the procedural default is not clear, if there is no merit to the substantive constitutional claims, the certificate should not be issued; but, (3) if the procedural default is not clear and the substantive constitutional claims are debatable among jurists of reason, the certificate should be granted." Khaimov v. Crist, 297 F.3d 783, 786 (8th Cir. 2002) (citing Slack v. McDaniel, 529 U.S. 473, 484-85 (2000)). See also Langley v. Norris, 465 F.3d 861, 863 (8th Cir. 2006). After reviewing the record in this case, this Court determines that the standard for a certificate of appealability is not met and that petitioner's motion seeking same should be and hereby is denied.
IT IS SO ORDERED this 17th day of September 2010. /s/Susan Webber Wright UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?