Spivey v. McDonald

Filing 49

ORDER Denying 45 Motion for Certificate of Appealability signed by District Judge Lawrence J. O'Neill on 02/01/2016. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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W.C. SPIVEY,
Petitioner,

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ORDER DECLINING TO ISSUE
CERTIFICATE OF APPEALABILITY

v.

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Case No. 1:12-cv-00206-LJO-SKO HC

M. McDONALD, Warden, and
CONNIE GIPSON, Warden,
(Doc. 45)

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Respondents.

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On February 13, 2012, Petitioner filed a pro se petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. On March 24, 2015, the Magistrate Judge filed findings and recommendations in

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which she recommended that the Court deny the petition for writ of habeas corpus and decline to
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issue a certificate of appealability. Petitioner filed objections on April 17, 2015. On May 26, 2015,

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the District Court adopted the findings and recommendations, ordered entry of judgment for

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Respondent, and declined to issue a certificate of appealability. Thereafter, Petitioner filed an appeal

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in the U.S. Court of Appeals for the Ninth Circuit. On June 18, 2015, he moved the District Court

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for a certificate of appealability.

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A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district

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court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell,
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537 U.S. 322, 335-36 (2003). In a proceeding under 28 U.S.C. § 2255, an applicant may not appeal
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a District Court judgment unless the District Judge or a Circuit Judge issues a certificate of

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appealability under 28 U.S.C. § 2253(c). F.R.App.P. 22(b). Section 2253(c) provides:

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(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—

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(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

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(B) the final order in a proceeding under section 2255.

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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.

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(3) The certificate of appealability under paragraph (1) shall indicate
which specific issues or issues satisfy the showing required by paragraph
(2).

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If a court denies a habeas petition, the court may only issue a certificate of
appealability "if 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

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to deserve encouragement to proceed further." Miller-El, 537 U.S. at 327; Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Although the petitioner is not required to prove

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the merits of his case, he must demonstrate "something more than the absence of

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frivolity or the existence of mere good faith on his . . . part." Miller-El, 537 U.S. at

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338.

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In the present case, the Court finds that reasonable jurists would not find the Court's

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determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or
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deserving of encouragement to proceed further. Petitioner has not made the required substantial

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showing of the denial of a constitutional right. Accordingly, the Court declines to issue a certificate

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of appealability.

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CONCLUSION AND ORDER

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The Court hereby DECLINES to issue a certificate of appealability.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

February 1, 2016

UNITED STATES DISTRICT JUDGE

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