Sampson v. Palmer et al

Filing 81

ORDERED that petitioner's # 75 Request for a certificate of appealability is DENIED. FURTHER ORDERED that the Clerk of Court shall send a copy of this order to the USCA 9th Circuit. (NEF emailed to 9th Circuit on 1/7/2014; re USCA case number 13-17682.) Signed by Judge Larry R. Hicks on 1/6/2014. (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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WILLIE SAMPSON,

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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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____________________________________/

3:11-cv-00019-LRH-WGC
ORDER

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This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a
Nevada state prisoner represented by counsel.
On October 22, 2013, this Court issued an order striking petitioner’s various pro se motions

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and directing the Clerk to accept no further documents filed by petitioner in pro se. (ECF No. 74).

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As this case is on-going, the Court’s order also set a deadline for the filing of an answer. (Id.).

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On November 25, 2013, petitioner filed a notice of appeal. (ECF No. 75). This Court

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construes petitioner’s notice of appeal as a motion for a certificate of appealability. In order to

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proceed with his appeal, petitioner must receive a certificate of appealability. 28 U.S.C. §

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2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir.

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2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a

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petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a

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certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84

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(2000). “The petitioner must demonstrate that reasonable jurists would find the district court's

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assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at 484). In

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order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are

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

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questions are adequate to deserve encouragement to proceed further. Id.

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In the present case, no reasonable jurist could conclude that this Court’s order of October 22,
2013, was in error. Petitioner is not entitled to a certificate of appealability.
IT IS THEREFORE ORDERED that petitioner’s request for a certificate of appealability
(ECF No. 75) is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall send a copy of this order to the
United States Court of Appeals for the Ninth Circuit.
Dated this 6th day of January, 2014.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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