Shadden, Jr. v. Adams

Filing 11

ORDER signed by Magistrate Judge Sandra M. Snyder on 5/10/2010 DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY re 9 Notice of Appeal filed by Thomas Shadden, Jr.(Lundstrom, T)

1 2 3 4 5 6 7 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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UNITED STATES DISTRICT COURT

THOMAS SHADDEN, JR., Petitioner, v. DERRAL G. ADAMS, Warden, Respondent. )

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1:10-CV-00298 SMS HC ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 8, 2010, he consented to have a Magistrate Judge conduct all proceedings in this matter pursuant to 28 U.S.C. § 636(c). On March 19, 2010, the undersigned issued an order dismissing the petition as successive to a previously filed petition in case no. 1:09-CV-01610 BAK HC. On April 1, 2010, Petitioner filed a notice of appeal. 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, 123 S.Ct. 1029, 1039 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which 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 1

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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.

7 8 9 10 If a court denies a petitioner's petition, the court may only issue a certificate of appealability 11 "if jurists of reason could disagree with the district court's resolution of his constitutional claims or 12 that jurists could conclude the issues presented are adequate to deserve encouragement to proceed 13 further." Miller-El, 123 S.Ct. at 1034; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the 14 petitioner is not required to prove the merits of his case, he must demonstrate "something more than 15 the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 123 S.Ct. at 16 1040. 17 In the present case, the Court finds that reasonable jurists would not find the Court's 18 determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or 19 deserving of encouragement to proceed further. Petitioner has not made the required substantial 20 showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a 21 certificate of appealability. 22 23 24 IT IS SO ORDERED. 25 26 27 28
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(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).

Dated: icido3

May 10, 2010

/s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE

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