Volpicelli v. Palmer

Filing 94

ORDER - A certificate of appealability is denied. See attached PDF Order for specifications. Signed by Judge Robert C. Jones on 4/19/2022. (Copies have been distributed pursuant to the NEF - HKL)

Case 3:10-cv-00005-RCJ-CLB Document 94 Filed 04/19/22 Page 1 of 2
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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***
FERRILL JOSEPH VOLPICELLI,
v.

Petitioner,

Case No. 3:10-cv-00005-RCJ-CLB
ORDER

JACK PALMER, et al.,
Respondents.

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On April 30, 2015, this court entered a final order and judgment denying Ferrill

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Joseph Volpicelli’s petition for writ of habeas corpus on the merits (ECF No. 58). On

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appeal, the United States Court of Appeals for the Ninth Circuit denied Volpicelli’s

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request for a certificate of appealability and the United States Supreme Court denied his

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petition for writ of certiorari (ECF Nos. 62, 64). On April 5, 2021, Volpicelli filed a motion

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for relief from judgment under Fed. R. Civ. P. 60(b), which this court denied (ECF Nos.

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66, 84). On January 19, 2022, Volpicelli filed a motion to alter or amend judgment

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pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, which this court denied

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(ECF No. 85).

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Volpicelli filed a notice of appeal (ECF No. 90). The Ninth Circuit remanded the

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case to this court for the limited purpose of granting or denying a certificate of

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appealability (ECF No. 92). This court’s order denying the motion to alter or amend

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judgment is a final order adverse to the petitioner. As such, Rule 11 of the Rules

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Governing Section 2254 Cases requires this court to issue or deny a certificate of

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

Case 3:10-cv-00005-RCJ-CLB Document 94 Filed 04/19/22 Page 2 of 2
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the petitioner "has made a substantial showing of the denial of a constitutional right."

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With respect to claims rejected on the merits, a petitioner "must demonstrate that

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reasonable jurists would find the district court's assessment of the constitutional claims

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

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Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if

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

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

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Having reviewed its determinations and rulings in adjudicating Volpicelli’s motion, the

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court finds that none of those rulings meets the Slack standard. The court therefore

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declines to issue a certificate of appealability for its resolution of Volpicelli’s motion.

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IT IS THEREFORE ORDERED that a certificate of appealability is denied.

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April 19, 2022.

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ROBERT C. JONES
UNITED STATES DISTRICT JUDGE

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