Grady v. Biter

Filing 65

ORDER Declining to Issue Petitioner a Certificate of Appealability. Signed by Judge Cynthia Bashant on 8/8/2017. (USCA Case Number 17-55580. Order electronically transmitted to the US Court of Appeals. All non-registered users served via U.S. Mail Service.) (akr)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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MARQUISE GRADY,

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Case No. 13-cv-2479-BAS(MDD)
Petitioner,

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v.

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ORDER DECLINING TO ISSUE
PETITIONER A CERTIFICATE
OF APPEALABILITY

M.D. BITER,

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[ECF No. 64]
Respondent.

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On February 10, 2016, the Court overruled Petitioner Marquise Grady’s

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objections, approved and adopted in its entirety the magistrate judge’s report and

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recommendation, and denied Mr. Grady’s petition for writ of habeas corpus brought

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under 28 U.S.C. § 2254. (ECF No. 51.) Mr. Grady suggested that he wished to pursue

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an appeal, but he did not receive the Court’s February 10, 2016 Order within the time

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period necessary to file a timely notice of appeal. (ECF No. 54.) Because the Court

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lacked the authority to extend Mr. Grady’s appeal deadline, it invited Mr. Grady to

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file a motion for reconsideration instead. (ECF No. 55.) The Court denied Mr.

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Grady’s motion for reconsideration on the grounds that the arguments presented were

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not properly before the Court under either Rule 59(e) or Rule 60(b). (ECF No. 61.)

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//
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13cv2479

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A certificate of appealability may issue only if the applicant makes a

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substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). “A

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petitioner satisfies this standard by demonstrating that jurists of reason could disagree

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with the district court’s resolution of his constitutional claims or that jurists could

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conclude the issues presented are adequate to deserve encouragement to proceed

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further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack v. McDaniel,

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529 U.S. 473, 484 (2000). Mr. Grady failed to meet that standard. Because reasonable

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jurists would not find the Court’s assessment of Mr. Grady’s arguments debatable or

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wrong, the Court DECLINES to issue a certificate of appealability for the Court’s

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April 10, 2017 Order (ECF No. 61). See Slack, 529 U.S. at 484.
IT IS SO ORDERED.

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DATED: August 8, 2017

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13cv2479