Green v. Harrison

Filing 113

ORDER denying 108 Petitioner's Motion for Certificate of Appealability. This Court finds that a certificate of appealability is not warranted in this instance because the dismissal of the instant petition under the circumstances here is not an issue debatable among jurists of reason nor could any other court resolve the issue in a different manner. Accordingly, the Court hereby DECLINES to issue a certificate of appealability. Signed by Judge Michael M. Anello on 11/17/2009. (USCA Case No. 09-56207. Order electronically transmitted to US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

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 DENAIL SHANE GREEN, vs. Petitioner, CASE NO. 05CV1485-MMA (CAB) ORDER DENYING PETITIONER'S MOTION FOR CERTIFICATE OF APPEALABILITY [Doc. No. 108]

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

CHARLES M. HARRISON, Warden, Respondent.

On July 25, 2004, Petitioner Denail Shane Green, a state prisoner proceeding with counsel, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his San Diego County Superior Court conviction in case number SCD137792 for possession of cocaine base, a violation of California Penal Code section 11350(a). (Doc. No. 1.) On May 6, 2009, Magistrate Judge Papas issued a Report and Recommendation ("R&R") recommending that the Court deny the Petition for Writ of Habeas Corpus. (Doc. No. 104.) On July 6, 2009, the Court issued an Order adopting the R&R and denying the Petition for Writ of Habeas Corpus. (Doc. No. 106.) On November 26, 2008, Petitioner filed a motion for certificate of appealability. (Doc. No. 108.) That same day, Petitioner also filed notice of appeal of the Court's order denying his petition (Doc. No. 45.) Before a petitioner can appeal a district court's order denying a petition for writ of habeas corpus, a certificate of appealability must issue. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). The requirement that a petitioner seek a certificate of appealability is a gate-keeping mechanism that

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protects the Court of Appeals from having to devote resources to frivolous issues, while at the same time affording petitioners an opportunity to persuade the court that, through full briefing and argument, the potential merit of claims may appear. Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000). However, a state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-336 (2003). This Court will issue a certificate of appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the petitioner must establish that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In the present case, the Court denied the petition in its entirety. This Court finds that a certificate of appealability is not warranted in this instance because the dismissal of the instant petition under the circumstances here is not an issue debatable among jurists of reason nor could any other court resolve the issue in a different manner. Lambright, 220 F.3d at 1024­25. Accordingly, the Court hereby DECLINES to issue a certificate of appealability. IT IS SO ORDERED. DATED: November 17, 2009

Hon. Michael M. Anello United States District Judge

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