Travis v. Hobbs

Filing 50

ORDER denying 49 Motion for Certificate of Appealability. Signed by Magistrate Judge Jerome T. Kearney on 4/18/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
KENNY TRAVIS, JR.,
Plaintiff,
v.
RAY HOBBS, Director,
Department of Correction
Defendant.

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Arkansas )
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Case No. 5:11-CV-00119 JTK

ORDER DENYING PETITIONER’S MOTION FOR
CERTIFICATE OF APPEALABILITY
BEFORE THE COURT is Kenny Travis, Jr.’s Motion for Certificate of Appealability
(Doc. No. 49). This Motion essentially requests a certificate of appealability to appeal the
Court’s denial of Petitioner’s previous Motion to Compel Discovery Responses (Doc. No. 46).
After reviewing the briefing and applicable law, the Court finds that this motion should be
DENIED.
Petitioner’s requested relief cannot be granted because there has been no final order
entered in this action. Rule 11(a) of the Rules Governing Section 2254 cases only anticipates the
issuance of denial of a certificate of appealability when a final order has been entered that is
adverse to the applicant. Further, 28 U.S.C. § 2253 only discusses certificates of appealability
within the context of final orders. Federal Rule of Appellate Procedure Rule 22(a)’s discussion
of appeals refers to a “district court’s order denying the application” for a writ of habeas corpus.
The term “final order” appears to be synonymous with the term “final judgment,” which
is used in the Federal Rules of Procedure. See e.g., Fed. R. Civ. P. 54(b). The Court’s Order
Denying Petitioner’s Motion to Compel Discovery Responses made no decision regarding any of
Petitioner’s claims for relief under his habeas petition. Thus, it was not a final order, and the
1

Court is unaware of any legal basis for granting Petitioner’s present request for a certificate of
appealability.
Even if this were the proper time to issue a certificate of appealability, the relevant
standards have not been met.1 Accordingly, Petitioner’s Motion for Certificate of Appealability
is DENIED.
SO ORDERED this 18th day of April, 2012.

__________________________________
United States Magistrate Judge

1

A certificate of appealability “should issue if the applicant has ‘made a substantial showing of the
denial of a constitutional right,’ 28 U.S.C. § 2253(c)(2), which we have interpreted to require that
the ‘petitioner must demonstrate that reasonable jurists would find the district court’s assessment
of the constitutional claims debatable or wrong.’” Tennard v. Dretke, 542 U.S. 274, 282 (2004)
(quoting Slack v. McDaniel, 529 U.S. 473, 483-84 (2000)).
2