Hightower v. Felker

Filing 47

ORDER by Judge Ronald M. Whyte Denying 44 Motion for Certificate of Appealability. (jg, COURT STAFF) (Filed on 8/7/2009)

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*E-FILED - 8/7/09*

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

KYRON L. HIGHTOWER, Peittioner, v. TOM FELKER, Warden Respndent. /

No. C 07-1338 RMW (PR) ORDER DENYING PETITIONER'S APPLICATION FOR CERTIFICATE OF APPEALABILITY (Docket No. 44)

Petitioner filed a pro se habeas petition. Following briefing by the parties, this court denied the petition on the merits and entered judgment on March 18, 2009. Petitioner filed a timely notice of appeal and a timely application for a certificate of appealability ("COA"). In his application for COA, petitioner asks the court to consider his limited mental ability. Petitioner attaches a 2003 report by a psychiatrist regarding petitioner's mental issues. A court shall grant a COA "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 indicate which issues satisfy this standard, see id. § 2253(c)(3), and the court of appeals is limited to considering only those claims. See Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir. 1999); Fuller v. Roe, 182 F.3d 699, 702-03 (9th Cir. 1999). "Where a district court has rejected the
Order Denying Petitioner's Application for Certificate of Appealability P:\PRO-SE\SJ.Rmw\HC.07\Hightower338.coa2.wpd

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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). In this case, the court finds that petitioner has not made a substantial showing of the denial of a constitutional right on any of his claims. None of the claims that petitioner raised involved or were related to his limited mental ability. The court's order denying petition for writ of habeas corpus issued on March 18, 2009 explained why petitioner's claims lacked merit. Accordingly, the court will DENY petitioner a certificate of appealability (docket no. 44). Petitioner may, however, proceed to file a request for a certificate of appealability directly with the Ninth Circuit. See Nevius v. Sumner, 105 F.3d 453, 458 (9th Cir. 1996). IT IS SO ORDERED. DATED:

8/5/09

RONALD M. WHYTE United States District Judge

Order Denying Petitioner's Application for Certificate of Appealability P:\PRO-SE\SJ.Rmw\HC.07\Hightower338.coa2.wpd

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