Burns v. Kane

Filing 55

ORDER DISREGARDING Petitioner's Request for Extension of Time to File Appeal and Motion for Appointment of Counsel, and Declining to Issue Certificate of Appealability 51 , 52 , 54 , signed by District Judge Lawrence J. O'Neill on 2/7/08. (Hellings, J)

(HC) Burns v. Kane

Doc. 55

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 A.P. KANE, Warden, 13 Respondent. 14 15 On November 28, 2007, the Court denied the instant petition for writ of habeas corpus 16 filed pursuant to 28 U.S.C. § 2254, and judgment was entered in favor of Respondent. (Court 17 Docs. 49, 50.) On January 31, 2008, Petitioner filed a notice of appeal, motion for leave to file 18 late notice of appeal, motion for appointment of counsel, and request for certificate of 19 appealability. (Court Docs. 51, 52, 53, 54.) 20 1. 21 Petitioner requests a thirty day extension of time, until February 28, 2008, to file his 22 notice of appeal. Inasmuch as Petitioner filed his notice of appeal on this same date, January 31, 23 2008, his request for an extension of time to file such shall be DISREGARDED as unnecessary. 24 2. 25 With regard to Petitioner's motion for the appointment of counsel, as the case in this 26 Court is closed and is on appeal, Petitioner's request should be directed to the Ninth Circuit 27 Court of Appeals. 28 1
Dockets.Justia.com

UNITED STATES DISTRICT COURT

MONROE WALTER BURNS, Petitioner, v.

1:04-cv-6409 LJO DLB HC ORDER DISREGARDING PETITIONER'S REQUEST FOR EXTENSION OF TIME TO FILE APPEAL AND MOTION FOR APPOINTMENT OF COUNSEL, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY [Docs. 51, 52, 54] /

Motion for Extension of Time to File Appeal

Motion for Appointment of Counsel

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Request for Certificate of Appealability Petitioner also seeks to appeal this action, and requests a certificate of appealability. A

state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-336 (2003). The controlling statute, 28 U.S.C. § 2253, provides as follows: (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. (c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). When the district court denies a habeas petition on procedural grounds, as the court did in this action, a certificate of appealability should issue, and an appeal of the district court's order may be taken, if the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). In the present case, the Court finds that reasonable jurists would not find it debatable that the state courts' decision denying Petitioner's petition for writ of habeas corpus were not "objectively unreasonable" and the Court declines to issue a certificate of appealability. Based on the foregoing, it is HEREBY ORDERED that: 1. Petitioner's motion for an extension of time to file his notice of appeal is 2

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DISREGARDED as unnecessary; Petitioner's motion for appointment of counsel is DISREGARDED; and, The Court declines to issue a certificate of appealability.

IT IS SO ORDERED. Dated: b9ed48 February 7, 2008 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE

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