Greel v. Martel

Filing 26

ORDER by Judge Claudia Wilken denying 24 Motion for Certificate of Appealability on Insufficiency of Evidence Claim(cwlc1, COURT STAFF) (Filed on 8/30/2010)

Greel v. Martel

Doc. 26

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On July 23, 2010, the Court issued an Order Denying Petition for Writ of Habeas Corpus. In the conclusion of the Order, the v. MICHAEL MARTEL, Warden, Respondent. / STEPHEN W. GREEL, Petitioner, No. 08-04474 CW ORDER DENYING MOTION FOR CERTIFICATE OF APPEALABILITY ON INSUFFICIENCY OF EVIDENCE CLAIM (Docket # 24) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Court indicated that it granted a certificate of appealability on two of Petitioner's three claims. 15. On August 19, 2010, Petitioner filed a notice of appeal and a motion for a certificate of appealability on his claim for insufficiency of the evidence supporting his conviction for kidnapping, the claim for which the Court did not grant a certificate of appealability. Petitioner argues that reasonable See July 23, 2010 Order at 14-

jurists could disagree on whether driving a car at five miles an hour several hundred feet over a bridge when the victim escaped by jumping out the car window was only incidental to the rape because it did not increase the risk of harm to the victim or decrease his risk of detection. In the July 23, 2010 Order, the Court held that

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

the state court's denial of this claim was not contrary to or an unreasonable application of Supreme Court authority because "a reasonable jury could have found that Petitioner's forced movement of the victim, while not far in distance, was not merely incidental to the rape because it substantially increased the risk of injury to the victim." July 23, Order at 9. The Court finds that

Petitioner has not made a sufficient showing of the denial of a constitutional right to justify a certificate of appealability on this claim. Therefore, his motion for a certificate of

appealability on this claim is denied.

IT IS SO ORDERED.

Dated: August 30, 2010

CLAUDIA WILKEN United States District Judge

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