Redd v. Kirkland

Filing 16

ORDER DENYING REQUEST FOR CERTIFICATE,OF APPEALABILITY; ADDRESSING OTHER PENDING MOTIONS re 11 , 12 , 13 . Signed by Judge Jeremy Fogel on 11/5/08. (dlm, COURT STAFF) (Filed on 11/17/2008)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA PAUL A. REDD, JR., Petitioner, vs. RICHARD KIRKLAND, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) No. C 06-07566 JF (PR) ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY; ADDRESSING OTHER PENDING MOTIONS (Docket Nos. 11, 12 & 13) On July 10, 2008, the Court granted Respondent's motion to dismiss this pro se petition for a writ of habeas corpus and entered judgment. On August 4, 2008, Petitioner filed a motion for a certificate of appealability. (Docket No. 11.) Petitioner also filed a motion for leave to appeal in forma pauperis (Docket No. 12) and a motion for appointment of counsel (Docket No. 13). A petitioner may not appeal a final order in a federal habeas corpus proceeding without first obtaining a certificate of appealability (formerly known as a certificate of probable cause to appeal). See 28 U.S.C. 2253(c); Fed. R. App. P. 22(b). A judge shall grant a certificate of appealability "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c)(2). The certificate must Order Denying COA: Addressing Other Pending Motions P:\PRO-SE\SJ.JF\HC.06\Redd7566_coa.wpd 1 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 indicate which issues satisfy this standard. See id. 2253(c)(3). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy 2253(c) is straightforward: the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court denied the instant habeas petition after careful consideration of the merits. The Court found no violation of Petitioner's federal constitutional rights in the underlying state court proceedings. Petitioner has failed to demonstrate that jurists of reason would find it debatable whether this Court was correct in its ruling. Accordingly, Petitioner's request for a certificate of appealability (Docket No. 11) is DENIED. Petitioner did no seek pauper status in the instant action having paid the full filing fee. Accordingly, Petitioner's motion for leave to proceed in forma pauperis on appeal (Docket No. 12) is DENIED to bringing it directly in the Ninth Circuit for an independent review of the record to determine whether the appeal is frivolous. The request for appointment of counsel on appeal (Docket No. 13) is also DENIED without prejudice to bringing it directly in the Ninth Circuit. The clerk shall forward to the court of appeals the case file with this order. See Fed. R. App. P. 22(b). This order terminates Docket Nos. 11, 12 and 13. IT IS SO ORDERED. DATED: 11/5/08 JEREMY FOGEL United States District Judge Order Denying COA: Addressing Other Pending Motions P:\PRO-SE\SJ.JF\HC.06\Redd7566_coa.wpd 2

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