Boyce v. Felker

Filing 40

ORDER signed by Circuit Judge Richard C. Tallman on 06/29/10 ORDERING that petitioner's 39 Motion for Certificate of Appealability is DENIED. (Benson, A.)

( HC ) Boyce v. Felker

Do c. 40

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 26 27 28 Bruno Stolc is substituted for Larry Small as the warden where the petitioner is now incarcerated, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
*

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

KEVIN ALEXANDER BOYCE,

2:06-cv-01944-RCT

Petitioner, ORDER v.

BRUNO STOLC, Warden,*

Respondent.

This court dismissed the Petitioner Kevin Boyce's petition for writ of habeas corpus on June 2, 2009. On June 14, 2010, Boyce petitioned for a certificate of appealability. A certificate of appealability is required before an appeal can be taken. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A petitioner must show that the issue to be appealed is "debatable among jurists of reason," that different courts

Dockets.Justia.com

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 26 27 28

could resolve the issue differently, or that the question "deserve[s] encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983) (superseded on other grounds by 28 U.S.C. § 2253(c)) (citations omitted). For the reasons set forth in this court's June 2, 2009, order dismissing the petition, Boyce has failed to make a substantial showing of the denial of a constitutional right to a full and fair hearing on his Fourth Amendment motion to suppress. Moreover, Boyce has not filed a notice of appeal, and the time limit for him to do so expired nearly a year ago. For all of these reasons, Boyce's petition for a certificate of appealability is denied.

DATED this 29th day of June, 2009, at Seattle, Washington. /s/ Richard C. Tallman UNITED STATES CIRCUIT JUDGE Sitting by Designation