Jimenez v. Phillips

Filing 19

OPINION. A review of the relevant portions of the file and the reasons set forth in this Court's June 26, 2012, Opinion establish that the Petitioner has failed to make a substantial showing of the denial of a constitutional right. Therefore, th e Petitioner's request for a COA is denied. See Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). (Signed by Judge Robert W. Sweet on 11/7/2012) (lmb)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-----x
JOSE JIMENEZ,
04 Civ. 10155

Petitioner,

OPINION

-againstWILLIAM PHILLIPS,
Respondent.

-x

Sweet, D.J.

Petitioner Jose Jimenez ("Jimenez

ll

)

filed a petition

seeking habeas corpus relief pursuant to 28 U.S.C.
petition was denied on January 19, 2006.

§

2254.

(Dkt. No.7).

The

Jimenez

later filed a motion to vacate the Court's judgment pursuant to
Fed. R. Civ. P. 60(b), and that motion was denied on June 26,
2012.

(Dkt. No. 16).
On July 25, 2012, Petitioner submitted his request for

a certificate of appealability ("COA

If
)

to the United States

Court of Appeals for the Second Circuit.
A COA may only

issued "if

(Dkt. No. 17).
applicant has made a

substantial showing of the denial of a constitutional right.

1f

See 28 U.S.C.

§

2253 (c) (2).

Section 2253 (c) (1) of Title 28 of

the United States Code provides, in pertinent part, that:
[u]nless a circuit justice or judge issues a
certificate of appealability, an appeal may not be
taken to the court of appeals from
(A)

final order
a habeas corpus proceeding in
which the detention complained
arises out of
process issued by a State court; or
final order in a proceeding under section
2255.

(B)

28 U.S.C.

§

2253 (c) (1).

A review of the relevant portions of

file and

in this Court's June 26, 2012, Opinion

reasons set

Petitioner has failed to make a substantial

establish that

showing of the denial of a constitutional right.
Petitioner's

for a COA is denied.

Therefore,

See Lozada v. United

States, 107 F.3d 1011 (2d Cir. 1997), abrogated on other grounds
United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997).
It is so ordered.

7,

New York, NY
November

2012

U.S.D.J.

1