Bynoe v. Helling et al

Filing 69

ORDER DENYING ECF No. 67 Motion for Certificate of Appealability re ECF No. 66 Notice of Appeal. (E-mail notice (NEF) sent to the US Court of Appeals, Ninth Circuit.) (USCA Case No. 17-17012.) Signed by Judge Larry R. Hicks on 10/13/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MICHAEL BRUCE BYNOE,

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Petitioner, ORDER
v.

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Case No. 3:07-cv-00009-LRH-VPC

HELLING, et al.,
Respondents.

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On September 23, 2009, this court dismissed this habeas petition without prejudice

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for failure to exhaust the claims (ECF No. 41), and judgment was entered (ECF No. 42).

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On September 6, 2017, this court denied petitioner’s Rule 60(b) motion for relief from

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final judgment (ECF No. 65). This was a final order adverse to the petitioner. As such,

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Rule 11 of the Rules Governing Section 2254 Cases requires this court to issue or deny

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a certificate of appealability (COA).

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Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner "has

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made a substantial showing of the denial of a constitutional right." With respect to

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claims rejected on the merits, a petitioner "must demonstrate that reasonable jurists

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would find the district court's assessment of the constitutional claims debatable or

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wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463

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U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if reasonable

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jurists could debate (1) whether the petition states a valid claim of the denial of a

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constitutional right and (2) whether the court's procedural ruling was correct. Id.

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Having reviewed its denial of Bynoe’s Rule 60(b) motion, the court finds that

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reasonable jurists would not find this conclusion to be debatable or wrong. The court

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therefore declines to issue a certificate of appealability in this case.

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IT IS THEREFORE ORDERED that petitioner’s motion for a certificate of appealability
(ECF No. 67) is DENIED. A certificate of appealability is denied.

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DATED this 13th day of October, 2017.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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