Mayfield v. Scribner

Filing 30

Certificate of Appealability Denied re 29 Notice of Appeal. The certificate should not issue because reasonable jurists would agree that some evidence supports the board's and state courts' denial of Petitioner's claims. Accordingly, the Court denies Petitioner's request for a certificate of appealability. Signed by Judge Janis L. Sammartino on 2/3/2009. (cc: 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 Thomas Gene Mayfield, Jr. filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On December 3, 2008, pursuant to 28 U.S.C. § 636(b)(1), Magistrate Judge William McCurine, Jr. issued a Report and Recommendation ("R&R") that the Court deny the petition. (Doc. No. 25.) The Court received Petitioner's objections to the R&R on December 29, 2008. (Doc. No. 26.) After considering the R&R and Petitioner's objections, the Court adopted Magistrate Judge McCurine's recommendation over the objections and dismissed Petitioner's petition. (Doc. No. 27.) On January 28, 2009, Petitioner filed a notice of appeal. (Doc. No. 29.) This Court must "construe [Petitioner's] notice of appeal as a request for certificate of appealability." Turner v. Calderon, 281 F.3d 851, 864­65 (9th Cir. 2002) (quoting Sassounian v. Roe, 230 F.3d 1097, 1100 (9th Cir. 2000)). A certificate of appealability is authorized "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (2008). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented -107cv340

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
THOMAS GENE MAYFIELD, JR., vs. L. E. SCRIBNER, et al., Respondents. Petitioner, CASE NO. 07-CV-340 JLS (WMc) ORDER DENYING CERTIFICATE OF APPEALABILITY

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are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court must either (1) grant the certificate of appealability indicating which issues satisfy the required showing or (2) state why a certificate should not issue. Fed. R. App. P. 22(b). In this case, the certificate should not issue because reasonable jurists would agree that some evidence supports the board's and state courts' denial of Petitioner's claims. Accordingly, the Court DENIES Petitioner's requests for a certificate of appealability. IT IS SO ORDERED.

DATED: February 3, 2009 Honorable Janis L. Sammartino United States District Judge

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