Lyons v. Baca et al

Filing 27

ORDER DENYING # 24 Motion for Certificate of Appealability. FURTHER ORD Clerk SHALL TRANSMIT this order to the 9th Circuit forthwith. (E-mail notice (NEF) sent to the US Court of Appeals, Ninth Circuit.) USCA case 15-15410 . Signed by Judge Howard D. McKibben on 3/10/2015. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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WILLIAM R. LYONS,

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Petitioner,

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vs.

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Case No. 3:14-cv-00173-HDM-WGC

ISIDRO BACA, et al.,

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ORDER

Respondents.

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This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254
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by a Nevada state prisoner. By order filed January 22, 2015, the Court dismissed this action with
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prejudice as untimely. (ECF No. 22). The Court’s order also denied petitioner a certificate of
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appealability. (Id.). The Clerk’s judgment was entered the same date. (ECF No. 23).
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On February 13, 2015, petitioner filed a motion for a certificate of appealability. (ECF No.
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24). Respondents oppose petitioner’s motion. (ECF No. 25). In order to proceed with his appeal,
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petitioner must receive a certificate of appealability. 28 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 (9th Cir. 2006); see also United States v.

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Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make “a substantial
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showing of the denial of a constitutional right” to warrant a certificate of appealability. Id.; 28
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U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). “The petitioner must
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demonstrate that reasonable jurists would find the district court's assessment of the constitutional
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claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at 484). In order to meet this threshold
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inquiry, the petitioner has the burden of demonstrating that the issues are debatable among jurists of

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reason; that a court could resolve the issues differently; or that the questions are adequate to deserve

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encouragement to proceed further. Id. In the instant case, petitioner reasserts the same arguments

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he asserted in his petition and in his opposition to the motion to dismiss. The Court has addressed

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and rejected petitioner’s arguments in the order filed January 22, 2015. (ECF No. 22). No

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reasonable jurist would find this Court’s dismissal of the petition debatable or wrong. The Court

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therefore denies petitioner’s motion for a certificate of appealability.

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IT IS THEREFORE ORDERED that petitioner’s motion for a certificate of appealability
(ECF No. 24) is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court SHALL TRANSMIT this order to
the Ninth Circuit Court of Appeals forthwith.
Dated this 10th day of March, 2015.

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HOWARD D. McKIBBEN
UNITED STATES DISTRICT JUDGE

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