Peter Jordan Chiesa v. Martin Veal

Filing 38

ORDER Denying 37 Request for Certificate of Appealability signed by Senior Judge Arthur L. Alarcon on 02/02/2009. (Flores, E)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 vs. MARTIN VEAL, Warden Respondent. / On January 20, 2009, this Court denied Peter Jordan Chiesa's ("Petitioner") application for a writ of habeas corpus. Petitioner filed a Notice of Appeal on January 28, 2009. (Doc. 36). Pending before this Court is Petitioner's request for a certificate of appealability. (Doc. 37). Petitioner seeks to certify "the issue of whether Petitioner was denied his right to be free from a cruel and unusual punishment under the Eighth Amendment, in a noncapital case, as his sentence was grossly disproportionate in that it was not commensurate with petitioner's culpability due to his undisputed vascular dementia." (Id. at 2). "[A] state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition." Miller-El v. Cockrell, 537 U.S. 322, 335 (2003); 28 1 ORDER IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA PETER JORDAN CHIESA, Petitioner, Case No.1:07-cv-00667 ALA (HC)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

U.S.C. § 2253. Therefore, before Petitioner can appeal this Court's judgement, a certificate of appealability must issue to provide the Ninth Circuit jurisdiction to consider this appeal. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Under the controlling standard, a petitioner must sho[w] that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. " Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)(internal quotations omitted). Petitioner has failed to cite a non-capital case that requires state legislators to grant judges the authority to make individual assessments that will permit a trial court to deviate from imposing a mandatory life-sentence. Accordingly, IT IS HEREBY ORDERED that a certificate of appealability shall not issue because Petitioner has failed to show that reasonable jurists would debate this Court's denial of Petitioner's application for a writ of habeas corpus. ///// DATED: February 2, 2009 /s/ Arthur L. Alarcón UNITED STATES CIRCUIT JUDGE Sitting by Designation

2