Hammock v. Hobbs

Filing 17

Certificate of Appealability Denied re 16 Notice of Appeal. Signed by Judge Susan Webber Wright on 9/17/10. (dac)

Hammock v. Hobbs

Doc. 17

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION
PHILLIP HAMMOCK PETITIONER

v.

NO. 5:10CV00149 SWW

RAY HOBBS, interim Director of the Arkansas Department of Correction

RESPONDENT

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.

1

Dockets.Justia.com

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

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