Thomas v. Cooley et al

Filing 14

IT IS ORDERED that a Certificate of Appealability is Denied as stated herein. Signed by Judge Nannette Jolivette Brown on 6/28/2017.(cms)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

KELVIN THOMAS

CIVIL ACTION

VERSUS

NO. 16-1966

KEITH COOLEY, WARDEN

SECTION: “G” (4)
ORDER

“A COA [Certificate of Appealability] will issue only if the requirements of [28 U.S.C.] §
2253 have been satisfied.”1 Section 2253(c) permits issuance of a COA when “a petitioner has
made a ‘substantial showing of the denial of a constitutional right.’”2 “Under this standard, when
a district court denies habeas relief by rejecting constitutional claims on their merits, ‘the petitioner
must demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.’”3 When the district court denies the petition on
procedural grounds without reaching the merits, the petitioner must show “that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.”4
The petitioner must demonstrate “‘something more than the absence of frivolity or the
existence of mere ‘good faith’ on his or her part.’”5 However, a COA should not be denied “merely

1

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

2

Id. (quoting 28 U.S.C. § 2253(c)).

3

McGowen v. Thaler, 675 F.3d 482, 498 (5th Cir. 2012) (quoting Slack v. McDaniel, 529 U.S. 473, 484

4

Id. (quoting Slack, 529 U.S. at 484).

5

Id. (quoting Miller-El, 537 U.S. at 338).

(2000)).

because [the court] believes the applicant will not demonstrate an entitlement to relief.”6 In
addition “any doubts as to whether a COA should be granted are resolved in the petitioner’s
favor,”7 and the severity of the penalty may be a consideration in deciding whether a petitioner has
made a “substantial showing.”8
In the instant case, the petition is clearly untimely, and that determination would not
engender debate among reasonable jurists. Accordingly,
IT IS HEREBY ORDERED that a Certificate of Appealability is DENIED.

28th
NEW ORLEANS, LOUISIANA, this _______ day of June, 2017.

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

6

Id. (quoting Miller-El, 537 U.S. at 337).

7

Id.

8
See id.; Hill v. Johnson, 2010 F.3d 481 484 (5th Cir. 2000) (“[W]e may consider the severity of his
penalty in determining whether he has met his ‘substantial showing’ burden.”).