Bynoe v. Helling et al

Filing 46

ORDER denying 44 petitioner's Motion for Certificate of Appealability. See order re specifics. E-mail notice (NEF) sent to the US Court of Appeals, Ninth Circuit. Signed by Judge Larry R. Hicks on 10/29/09. (Copies have been distributed pursuant to the NEF - SL)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner is proceeding with counsel in this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On September 23, 2009, the court entered judgment for respondents. On October 23, 2009, petitioner filed a notice of appeal and a motion for a certificate of appealability. (Docket #44.) In order to proceed with his appeal, petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make "a substantial showing of the denial of a constitutional right" to warrant a certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). "The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. (quoting Slack, 529 U.S. at 484). In order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are debatable among jurists of reason; that a court could resolve the issues differently; or that the questions are adequate to deserve encouragement to proceed further. Id. vs. HELLING, Respondent. MICHAEL BRUCE BYNOE, Petitioner, ) ) ) ) ) ) ) ) ) / UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

3:07-cv-00009-LRH-VPC ORDER

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

This court has considered the issues raised by petitioner with respect to whether they satisfy the standard for issuance of a certificate of appealability, and determines that none meet that standard. IT IS THEREFORE ORDERED petitioner's motion for a certificate of appealability is DENIED. (Docket #44.) DATED this 29th day of October, 2009.

LARRY R. HICKS UNITED STATES DISTRICT JUDGE

2