Everett v. Louisiana State Penitentiary

Filing 14

MEMORANDUM ORDER denying 9 Motion for Certificate of Appealability re 8 Notice of Appeal. Signed by Chief Judge Robert G James on 11/6/09. (crt,DickersonSld, D)

RECEIVED USDC, WESTERN DISTRICT OF LA. TONY.R. MOQ~E,CLERK DATE / _$"~/ ~9

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION

I~ ~

CLARENCE EVERETT VERSUS WARDEN N. BURL CAIN

CIVIL ACTION NO. 09-0399 JUDGE ROBERT G. JAMES MAG. JUDGE KAREN L. HAYES

MEMORANDUM ORDER ON CERTIFICATE OF APPEALABILITY Pending before the Court is Petitioner's Application for Certificate of Appealabilty under FED. R. App. P. 22(b) [Doc. No. 9~.Petitioner seeks to appeal the August 21, 2009 Judgment of this Court adopting Magistrate Judge Hayes's July 15, 2009 Report and Recommendation. Plaintiff has filed no notice of appeal, but the Court will construe his Application for Certificate of Appealability as his notice of appeal. Under FED. R. App. P. 4(a)(1) and FED. R. Civ. P. 6(a), the latest date Petitioner's Notice of Appeal could be timely filed was Monday, September 21, 2009. Petitioner's Application for Certificate of Appealability was signed by him on September 23, 2009. Petitioner filed no motion for extension of time. Therefore, Petitioner's Notice of Appeal is untimely, and his Application for Certificate of Appealability is DENIED on this basis. Additionally, even if his appeal were timely, the Court would deny Petitioner's Application for Certificate of Appealability. Where a district court denies a habeas petition on procedural grounds without reaching the underlying constitutional claim, a certificate of appeal should issue when the prisoner shows that "jurists of reason would find it debatable whether the petition states a valid claim.
. .

and that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court finds that reasonable jurists could not debate whether the Court was correct in its procedural ruling that Petitioner's claim was time-barred. Thus, no Certificate of Appealability should issue. For the forgoing reasons, IT IS HEREBY ORDERED that Petitioner's Application for Certificate of Appealability is DENIED. MONROE, LOUISIANA this
____

day of November, 2009.

ROBERT G. JAME U1'~lITEDSTATES DISTRICT JUDGE

2