Kincaid v. Bergh

Filing 18

ORDER denying 17 Motion for Certificate of Appealability. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TIMOTHY KINCAID,
a/k/a Sha-Teak A. Imani,
Petitioner,
CASE NO. 2:11-cv-11359
HONORABLE LAWRENCE P. ZATKOFF

v.
D. BERGH,
Respondent.
___________________________/

ORDER DENYING PETITIONER’S MOTION
FOR A CERTIFICATE OF APPEALABILITY
Petitioner Timothy Kincaid has appealed the Court’s opinion and judgment denying his
habeas corpus petition. The Court dismissed the habeas petition because it was barred by the oneyear statute of limitations and because Petitioner’s claim that the state court lacked jurisdiction to
try him lacked merit.
A certificate of appealability may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Where a district court has rejected the constitutional claims on the merits, the
showing required to satisfy § 2253(c) is straightforward: The petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong. . . . When the district court denies a habeas
petition on procedural grounds without reaching the prisoner’s underlying
constitutional claim, a [certificate of appealability] should issue when the prisoner
shows, at least, 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.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
For the reasons given in the Court’s dispositive opinion, reasonable jurists would not find

the Court’s assessment of Petitioner’s jurisdictional claim debatable or wrong. Nor would
reasonable jurists debate whether the Court’s procedural ruling was correct or whether the petition
states a valid claim of the denial of a constitutional right. Therefore, Petitioner’s motion for a
certificate of appealability [dkt. #17] is DENIED.

S/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
Dated: June 25, 2012
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of this Order was served upon the attorneys of record
by electronic or U.S. mail on June 25, 2012.

S/Marie E. Verlinde
Case Manager
[phone]

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