Marple v. Gelb

Filing 17

Judge F. Dennis Saylor, IV: ORDER ON CERTIFICATE OF APPEALABILITY entered. A certificate of appealability is DENIED.(Cicolini, Pietro)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
MICHAEL MARPLE,
)
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Petitioner,
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Civil Action No.
v.
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13-12072-FDS
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BRUCE GELB,
)
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Respondent.
)
_______________________________________)
ORDER ON CERTIFICATE OF APPEALABILITY
SAYLOR, J.
On December 13, 2013, this Court issued an order granting respondent’s motion to
dismiss.
To appeal the final order in a proceeding instituted under 28 U.S.C. § 2254, the petitioner
must first obtain a Certificate of Appealability (“COA”) from a circuit justice or a district court.
See 28 U.S.C. § 2253(c). A COA will issue only if the petitioner “has made a substantial
showing of the denial of a constitutional right.” § 2253(c)(2). That standard is satisfied by
“demonstrating that jurists of reason could disagree with the district court’s resolution of
[petitioner’s] constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,
327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Petitioner has not satisfied that standard here. See Miller-El, 537 U.S. at 337. Indeed, no
reasonable jurist could conclude that this Court erred when it dismissed Marple’s Section 2255
motion as untimely. See Slack, 529 U.S. at 484 (“Where a plain procedural bar is present and the
district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude

either that the district court erred in dismissing the petition or that the petitioner should be
allowed to proceed further.”). Therefore, the COA should not issue.
In accordance with the foregoing, a certificate of appealability is DENIED.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: December 13, 2013

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