Feiger v. Hickman, et al

Filing 41

ORDER Denying Request for a Certificate of Appealability (Doc. 40 ). At the time petitioner filed his Notice of Appeal, this Court reviewed petitioner's original request for a COA as to all the claims raised in his petition and found a COA unwa rranted as to the remaining claims. Petitioner has not presented any new legal or factual basis for a COA to issue as to those claims. Further, petitioner's appeal has been completed and he is not entitled to a second appeal. Accordingly, petitioner's request for a COA is DENIED. IT IS SO ORDERED. Signed by Judge M. James Lorenz on 4/5/2011. (Order electronically transmitted to US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

-PCL Feiger v. Hickman, et al

Doc. 41

1 2 3 4 5 6 7 8 9 10 11 ROBERT JEFFRY FEIGER, 12 13 v. 14 RODERICK Q. HICKMAN, 15 16 17 Respondent. Petitioner, ) ) ) ) ) ) ) ) ) ) ) Civil No. 05cv1754-L(PCL) ORDER DENYING REQUEST FOR A CERTIFICATE OF APPEALABILITY [doc. #40] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Petitioner Robert Jeffry Feiger, a state prisoner proceeding pro se, filed a Petition for Writ

18 of Habeas Corpus under 28 U.S.C. § 2254. Respondent filed an answer and a supporting 19 memorandum of points and authorities to which petitioner filed a traverse. The case was 20 referred to United States Magistrate Judge Peter C. Lewis for a report and recommendation 21 ("Report") pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.3. The magistrate 22 judge's Report recommended the petition be denied. Petitioner filed timely objections to the 23 Report. After a de novo review, the Court adopted the Report in its entirety, overruled 24 petitioner's objections, and denied the petition on April 16, 2008. Judgment was entered on that 25 same date. On May 14, 2008, petitioner filed a notice of appeal, a motion for leave to proceed in 26 forma pauperis on appeal, and a motion for a Certificate of Appealability. 27 Petitioner sought a certificate of appealability for all the claims he raised in his petition:

28 (1) insufficiency of the evidence on Counts 2 and 3; (2) denial of right to impartial jury;
05cv1754

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1 (3) denial of due process re: admission of evidence of prior lewd acts; (4) denial of due process 2 re: instruction on prior lewd acts; (5) violation of ex post facto clause re: statute of limitations; 3 and (6) cruel and unusual punishment. The Court granted petitioner a COA with respect to 4 petitioner's Sixth Amendment right to an impartial jury claim only and denied his request for the 5 remaining claims. 6 The Ninth Circuit Court of Appeals affirmed the decision of this court on December 15,

7 2010 with respect to the certified Sixth Amendment claim. 8 On March 21, 2011, petitioner attempted to file a request for a certificate of appealability

9 "for the remaining issues that were before the US District Court" with the Ninth Circuit Court of 10 Appeals. On that same date, the Court of Appeals forwarded petitioner's request for a COA to 11 the District Court for processing. 12 At the time petitioner filed his Notice of Appeal, this Court reviewed petitioner's original

13 request for a COA as to all the claims raised in his petition and found a COA unwarranted as to 14 the remaining claims. Petitioner has not presented any new legal or factual basis for a COA to 15 issue as to those claims. Further, petitioner's appeal has been completed and he is not entitled to 16 a second appeal. 17 18 Accordingly, petitioner's request for a COA is DENIED. IT IS SO ORDERED.

19 DATED: April 5, 2011 20 21 22 COPY TO: 23 HON. PETER C. LEWIS UNITED STATES MAGISTRATE JUDGE 24 25 ALL PARTIES/COUNSEL 26 27 28
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05cv1754

M. James Lorenz United States District Court Judge