Fitts v. Gaetz

Filing 27

ORDER denying 24 Motion for Certificate of Appealability. Signed by Chief Judge David R. Herndon on 10/30/2013. (kbl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DENNIS FITTS,
Petitioner,
vs.

No.

3:10-cv-00494-DRH-DGW

RICK HARRINGTON,
Respondent.
ORDER
HERNDON, Chief Judge:
Pending before the Court is petitioner’s motion for certificate of appealability
(Doc. 24). For the following reasons petitioner’s motion will be DENIED.
Under the 2009 Amendments to Rule 11(a) of the Rules Governing Section
2254 Proceedings, the “district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” A petitioner
cannot appeal a dismissal of his habeas petition unless he obtains a Certificate of
Appealability. See 28 U.S.C. § 2253(c)(1). A Certificate of Appealability may only
be issued where the petitioner “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2); Evans v. Circuit Ct. of Cook Cnty.,
Ill., 569 F.3d 665, 667 (7th Cir. 2009). This requirement has been interpreted by
the Supreme Court to mean that an applicant must show that “reasonable jurists
could debate whether . . . the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Miller-el v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029 (2003)
(quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542
(2000)). While a petitioner need not show that his appeal will succeed, he must
show “something more than the absence of frivolity” or the existence of mere “good
faith” on his part. Id. at 338 (quoting Barefoot v. Estelle, 463 U.S. 880, 893, 103
S.Ct. 3383, 77 L.Ed.2d 1090 (1983)).
Here, the undersigned finds no basis for a determination that its decision to
dismiss petitioner’s claims was debatable or incorrect. Petitioner asserted two
claims, one of which was procedurally defaulted. Upon review of the record, the
Court certifies that the remaining claim is not debatable among jurists of reason
and that he could not make a substantial showing under 28 U.S.C. § 2254 of a
denial of a constitutional right.
Accordingly, the Court DENIES petitioner’s Certificate of Appealability (Doc.
24).
IT IS SO ORDERED.
Signed this 30th day of October, 2013.

Digitally signed by
David R. Herndon
Date: 2013.10.30
15:12:21 -05'00'
Chief Judge
United States District Court