Guitierrez v. Murphy

Filing 24

Judge F. Dennis Saylor, IV: ORDER entered. Order on Certificate of Appealability(Halley, Taylor)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
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BISMARK GUITIERREZ,
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Petitioner,
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Civil Action No.
v.
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17-10557-FDS
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JOSEPH MURPHY,
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Respondent.
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____________________________________)
ORDER ON CERTIFICATE OF APPEALABILITY
SAYLOR, J.
On December 20, 2010, Bismark Guitierrez was convicted in the Superior Court of two
counts of armed assault with intent to murder and one count of unlawful possession of a firearm.
On January 3, 2011, he was sentenced to a term of imprisonment of 8 to 12 years on one count of
armed assault and probation of 5 years on the other count of armed assault. In addition, he was
sentenced to a term of imprisonment of 4 to 5 years on the count of unlawful possession of a
firearm. The prison terms were to be served concurrently with a sentence Guitierrez was already
serving on an unrelated conviction.
After exhausting his appeals in the state courts, he petitioned for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 on April 13, 2017. This Court dismissed the petition as timebarred on November 27, 2017. He has since filed a motion for reconsideration and a motion to
vacate the Court’s dismissal of his petition. In those motions, petitioner appears to seek a
certificate of appealability (“COA”).
A COA will issue only if the petitioner “has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). In the First Circuit, “the necessity for a substantial

showing extends independently to each and every issue raised by a habeas petitioner.” Bui v.
DiPaolo, 170 F.3d 232, 236 (1st Cir. 1999). When the district court has rejected a constitutional
claim on the merits, a COA will issue only if the petitioner “demonstrate[s] that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the district court has denied a
habeas petition on procedural grounds, 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.” Id.
That standard has not been satisfied here. The Court concludes that jurists of reason
would not find it debatable that the claim is time-barred.
Accordingly, a certificate of appealability is DENIED as to all claims.
So Ordered.

s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: January 2, 2018

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