Turner v. Yates

Filing 29

Certificate of Appealability Denied re 28 Notice of Appeal. The certificate should not issue because reasonable jurists would agree that this petition constitutes a successive appeal under 28 USC §2254, that Petitioner has not received authori zation from the Ninth Circuit to file this petition, and that Petitioner is therefore statutorily barred from bringing this petition. Signed by Judge Janis L. Sammartino on 2/24/2009. (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 NATHAN KEVIN TURNER, vs. JAMES TILTON, Defendant. Nathan Kevin Turner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On May 23, 2008, pursuant to 28 U.S.C. § 636(b)(1), Magistrate Judge Anthony J. Battaglia issued a Report and Recommendation ("R&R") that the Court deny the petition. (Doc. No. 18.) The Court received Petitioner's objections to the R&R on October 15, 2008. (Doc. No. 25.) After considering the R&R and Petitioner's objections, the Court adopted Magistrate Judge Battaglia's recommendation over the objections and dismissed Petitioner's petition. (Doc. No. 26.) On February 9, 2009, Petitioner filed a notice of appeal. (Doc. No. 28.) 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 -107cv2036

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
CASE NO. 07-CV-2036 JLS (AJB) Plaintiff, 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 this petition constitutes a successive appeal under 28 U.S.C. § 2244(b)(3), that Petitioner has not received authorization from the Ninth Circuit to file this petition, and that Petitioner is therefore statutorily barred from bringing this petition. Accordingly, the Court DENIES Petitioner's requests for a certificate of appealability. IT IS SO ORDERED.

DATED: February 24, 2009 Honorable Janis L. Sammartino United States District Judge

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