Rowell v. Palmer et al

Filing 48

ORDERED that no Certificate of Appealability shall issue as to the Motion for Relief From Judgment; re 47 USCA Order. USCA Case No. 11-16691. Signed by Chief Judge Robert C. Jones on 7/26/2011. ( E-mail notice (NEF) sent to the US Court of Appeals, Ninth Circuit, on 7/27/2011 ) (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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LAMARR ROWELL,

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Petitioner,
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vs.
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JACK PALMER, et al.,
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Respondents.
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____________________________________)

3:10-cv-0044-RCJ-VPC
ORDER

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This is an action on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254,
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brought by a Nevada Prisoner. The petition was denied on its merits and the Court declined to issue
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a certificate of appealability. Thereafter, petitioner moved for reconsideration of petition’s merits,
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which was denied. Petitioner appealed and the Ninth Circuit Court of Appeals has remanded the
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matter for the Court to consider issuance of a certificate of appealability on the motion for relief from
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judgment. See ECF No. 47.
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Petitioner’s motion for relief from judgment offered a fallacious argument that
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respondents had committed fraud on the court by misrepresenting the record. His argument was
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rebutted by respondents with documentation supporting their factual contentions. The motion was
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denied.
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V.

Certificate of Appealability

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To pursue the appeal in this matter, petitioner must receive a certificate of
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appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435

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F.3d 946, 950-951 (9th Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir.

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2001). Generally, a petitioner must make “a substantial showing of the denial of a constitutional

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right” to warrant a certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529

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U.S. 473, 483-84 (2000). “The petitioner must demonstrate that reasonable jurists would find the

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district court's assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529

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U.S. at 484). In order to meet this threshold inquiry, the petitioner has the burden of demonstrating

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that the issues are debatable among jurists of reason; that a court could resolve the issues differently;

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or that the questions are adequate to deserve encouragement to proceed further. Id.

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Pursuant to the December 1, 2009 amendment to Rule 11 of the Rules Governing

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Section 2254 and 2255 Cases, district courts are required to rule on the certificate of appealability in

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the order disposing of a proceeding adversely to the petitioner or movant, rather than waiting for a

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notice of appeal and request for certificate of appealability to be filed. Rule 11(a). This Court has

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considered the issue raised by petitioner, with respect to whether it satisfies the standard for issuance

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of a certificate of appealability, and determines that it does not meet that standard. The Court will

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therefore deny petitioner a certificate of appealability.

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IT IS THEREFORE ORDERED that no Certificate of Appealability shall issue as
to the Motion for Relief From Judgment .

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Dated this ______ day of July, 2011.
26th

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______________________________________
UNITED STATES CHIEF DISTRICT JUDGE

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