Holmes v. Smith et al

Filing 11

ORDER denying 7 Motion for Certificate of Appealability re 9 Notice of Appeal. See order re specifics. E-mail notice (NEF) sent to the US Court of Appeals, Ninth Circuit. Signed by Judge Larry R. Hicks on 11/12/09. (Copies have been distributed pursuant to the NEF - SL)

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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 The Court dismissed this action because it was untimely. Order (#5). Petitioner has submitted a Notice of Appeal (#9) and a Request for Certificate of Appealability on Dismissal (#7). To appeal the denial of a petition for a writ of habeas corpus, Petitioner must obtain a certificate of appealability, after making a "substantial showing of the denial of a constitutional right." 28 U.S.C. 2253(c). 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. The issue becomes somewhat more complicated where, as here, the district court dismisses the petition based on procedural grounds. We hold as follows: When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA 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); see also James v. Giles, 221 F.3d 1074, 1077-79 (9th Cir. 2000). vs. GREG SMITH, et al., Respondents. VICTOR D. HOLMES, Petitioner, Case No. 3:09-cv-00337-LRH-(RAM) ORDER UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 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 claims that he did not receive anything from the Court from after he mailed his Petition (#4) until he received notification that the action had been dismissed as untimely. Even if true, in the Request (#7) Petitioner does not show cause why the action should not be dismissed as untimely, and he does not present any appealable issues. Petitioner argues that counsel should have been present each time he was re-sentenced, and that he was sentenced in absentia. That argument does not explain why Petitioner took more than the allowable time to file his Petition (#4) in this Court. Reasonable jurists would not disagree with the Court's conclusion. IT IS THEREFORE ORDERED that Petitioner's Request for Certificate of Appealability on Dismissal (#7) is DENIED. DATED this 12th day of November, 2009. _________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE -2-

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