Atcherley v. Scribner

Filing 39

ORDER DENYING 37 REQUEST FOR CERTIFICATE OF APPEALABILITY; DENYING 38 MOTIONS FOR APPOINTMENT OF COUNSEL AND 35 LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by Judge Maxine M. Chesney on October 30, 2008. (mmcsec, COURT STAFF) (Filed on 10/30/2008)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA WILBUR WADE ATCHERLEY, ) ) Petitioner, ) ) v. ) ) A. SCRIBNER, ) ) Respondent. ) ) ______________________________ ) No. C 04-4434 MMC (PR) ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY; DENYING MOTIONS FOR APPOINTMENT OF COUNSEL AND LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL (Docket Nos. 35, 37 & 38)

On October 20, 2004, petitioner, a California prisoner proceeding pro se, filed the above-titled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a conviction obtained against him in state court. On September 16, 2008, the Court denied the petition on the merits and entered judgment. On October 20, 2008, petitioner filed a notice of appeal from the entry of judgment in respondent's favor, along with a request for a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and Federal Rule of Appellate Procedure 22(b). See United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). That same date, petitioner also filed a motion for appointment of counsel and for leave to proceed in forma pauperis on appeal. Petitioner has not shown, however, that reasonable jurists would find the Court's assessment of the constitutional claims debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, petitioner's request for a certificate of appealability and his motions for appointment of counsel and leave to proceed in forma pauperis on appeal are hereby DENIED.

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The Clerk shall forward this order, along with the case file, to the United States Court of Appeals for the Ninth Circuit, from which petitioner may also seek a certificate of appealability. See Asrar, 116 F.3d at 1270. This order terminates Docket Nos. 35, 37 and 38. IT IS SO ORDERED. DATED: October 30, 2008 _________________________ MAXINE M. CHESNEY United States District Judge

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