Betts v. Baker et al

Filing 29

ORDER. IT IS ORDERED that petitioner's notice of appeal, construed as anapplication for a certificate of appealability 26 , is DENIED. IT IS FURTHER ORDERED that the Clerk shall send a copy of this order to the United States Court of Appeals for the Ninth Circuit. (Copy of Order sent to USCA via electronic notification. ([e-mail]) Signed by Judge Larry R. Hicks on 5/16/2012. (Copies have been distributed pursuant to the NEF - MLC)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
9
10
11
12
13

MICHAEL JAMES BETTS,

)
)
Petitioner,
)
)
vs.
)
)
RENEE BAKER, et al.,
)
)
Respondents.
)
____________________________________/

3:11-cv-00422-LRH-WGC
ORDER

14
15

This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254,

16

by a Nevada state prisoner. By order filed January 6, 2012, this Court denied petitioner’s motions

17

for discovery. (ECF No. 25). On January 17, 2012, petitioner filed a notice of appeal as to the

18

Court’s January 6, 2012 order. (ECF No. 26).

19

In order to proceed with his appeal, petitioner must receive a certificate of appealability. 28

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

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

1

In the present case, the Court denied petitioner’s motions for discovery because petitioner

2

failed to show good cause to conduct discovery in the instant habeas case. See Rule 6 of the Rules

3

Governing Section 2254 Cases; see also Bracy v. Gramley, 520 U.S. 899, 905-909 (1997). (ECF

4

No. 25). No reasonable jurist could conclude that the Court’s order denying discovery was in error.

5

Petitioner is not entitled to a certificate of appealability.

6
7
8
9

IT IS THEREFORE ORDERED that petitioner’s notice of appeal, construed as an
application for a certificate of appealability (ECF No. 26), is DENIED.
IT IS FURTHER ORDERED that the Clerk shall send a copy of this order to the United
States Court of Appeals for the Ninth Circuit.

10
Dated this 16th day of May, 2012.
11
12
13

LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2