Josiah v. Rodrigues

Filing 20

Judge F. Dennis Saylor, IV: ORDER entered on Certificate of Appealability. (Zaleski, Christine)

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UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ________________________________________ ) SAHR JOSIAH, ) ) Petitioner, ) ) v. ) Civil Action No. ) 16-11986-FDS MICHAEL RODRIGUES, ) ) Respondent. ) ) ORDER ON CERTIFICATE OF APPEALABILITY SAYLOR, J. On April 27, 2017, this Court issued an order dismissing Sahr Josiah’s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 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.” Id. at § 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)). That standard has not been satisfied here. See Miller-El, 537 U.S. at 337. Indeed, no reasonable jurist could conclude that this Court erred when it dismissed Josiah’s section 2254 motion as a so-called mixed-petition. See Slack, 529 U.S. at 484 (“Where a plain procedural bar 2 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: May 8, 2017

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