Gillum v. Hartley

Filing 25

ORDER DENYING 23 Petitioner's Motion for Certificate of Appealability; ORDER Modifying Nunc Pro Tunc Order DENYING 21 Petition for Writ of Habeas Corpus, signed by Chief Judge Anthony W. Ishii on 10/14/2010. (Martin, S)

(HC) Gillum v. Hartley

Doc. 25

1 2 3 4 5 6 7 AARON GILLUM, 8 Petitioner, 9 10 11 JAMES D. HARTLEY, 12 Respondent. 13 14 Aaron Gillum (hereinafter "Petitioner") is a state prisoner proceeding pro se with a petition 15 for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 16 The Magistrate Judge issued a Findings and Recommendation on July 12, 2010, 17 recommending that the petition for writ of habeas corpus be DENIED with prejudice. (Court Doc. 18 20.) The Court, in accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), conducted a de novo 19 review of the case and concluded that the Magistrate Judge's Findings and Recommendations was 20 supported by the record and contains the proper analysis. Accordingly, the Court adopted the 21 Findings and Recommendation and denied the petition for writ of habeas corpus on September 27, 22 23 24 25 26 27 28
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) 1:09-CV-147 AWI JMD (HC) ORDER DENYING PETITIONER'S MOTION FOR A CERTIFICATE OF APPEALABILITY [Doc. 23] ORDER MODIFYING NUNC PRO TUNC ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 21]

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2010. (Court Doc. 21.1) In that order, the Court declined to issue a certificate of appealability. On October 4, 20210, Petitioner filed a motion for a certificate of appealability.2

T h e Court notes that the September 27, 2010 order contained the wrong name in the body of the order.

I n the motion, Petitioner states that he is requesting "the U.S. District Court issue a Certificate of Appealability, ( C .O .A . ) , permitting Petitioner to appeal from the judgment entered by Chief Justice George (Supreme Court of California), o n July 14 2010 denying Petitioner[']s writ of habeas corpus." The Court presumes that since Petitioner filed this motion w ith his notice of appeal in this case, where Petitioner is challenging the denial of his federal petition, Petitioner is seeking a COA for his federal appeal.

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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. MillerEl v. Cockrell, 537 U.S. 322, 335 (2003) (citing 28 U.S.C. § 2253). The controlling statute regarding a certificate of appealability provides that a circuit judge or judge may issue a certificate of appealability where "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253. A habeas petitioner, who has been denied relief by the district court, may fulfill the standard required by section 2253 by showing that "jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327 (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While the petitioner is not required to prove the merits of his case, "a prisoner seeking a COA must prove `something more than the absence of frivolity' or the existence of mere `good faith' on his or her part." Miller-El, 537 U.S. at 338 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983), superseded on other grounds by 28 U.S.C. § 2253(c)(2)). In the present case, the Court had found that reasonable jurists would not find the Court's determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or that Petitioner's claims are deserving of encouragement to proceed further. The Court further found that Petitioner had not made the required substantial showing that he had been denied a constitutional right. Petitioner's motion for a certificate of appealability fails to provide any new arguments that would modify the Court's findings. Consequently, the Court hereby DENIES Petitioner's motion for a certificate of appealability. Accordingly, IT IS HEREBY ORDERED that: 1. The Court's Order of September 27, 2010 (Court Doc. 21) is modified nunc pro tunc on Page 1, line 16, to replace "Mark W. Sanders" with "Aaron Gillum"; and 2. The Court DENIES Petitioner's motion for a certificate of appealability.

IT IS SO ORDERED. Dated: 0m8i78 October 14, 2010 CHIEF UNITED STATES DISTRICT JUDGE 2