Foster v. Warden Lebanon Correctional Institution

Filing 56

ORDER re 53 Notice of Appeal filed by William A. Foster. Petitioner's request for cert. of appealability is DENIED. Petitioner's motion to proceed in forma pauperis is GRANTED, in that the Court determines petitioner is financially indigent, but DENIED, in that it has denied his request for a certificate of appealability. Signed by Judge James L Graham on 08/11/11. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
William A. Foster,

:
Petitioner

Warden, Lebanon
Institution,

Correctional

Respondent

Civil Action 2:09-cv-00214

:

v.

:

Judge Holschuh

:

Magistrate Judge Abel

:
:
ORDER

Petitioner Foster has filed a notice of appeal from the Court’s June 22, 2011
judgment dismissing his petition for writ of habeas corpus under 28 U.S.C. §2254.
Before a petitioner can appeal a judgment dismissing a §2254 action, a certificate of
appealability must issue. 28 U.S.C. §2253(c); Rule 22(b), Federal Rules of Appellate
Procedure.
Here the Court has dismissed some claims on the merits and others on
procedural grounds. When a claim has been denied on the merits, a certificate of
appealability may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §2253(c)(2). This standard is a codification
of Barefoot v. Estelle, 463 U.S. 880, 893 (1983). Slack v. McDaniel, 529 U.S.473, 483 (2000).
To make a substantial showing of the denial of a constitutional right, a petitioner must
show

that reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or that
the issues presented were "'adequate to deserve encouragement to
proceed further.'" Barefoot, 463 U.S., at 893, and n.4 . . . .
529 U.S. at 484.
When the Court dismisses a claim on procedural grounds, a certificate of
appealability
should issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.
Id. Thus, there are two components to determining whether a certificate of
appealability should issue when a claim is dismissed on procedural grounds: "one
directed at the underlying constitutional claims and one directed at the district court's
procedural holding." The court may first "resolve the issue whose answer is more
apparent from the record and arguments." Id.
For the reasons set out in the Court’s June 22, 2011 Opinion and Order and the
January 26, 2011 Report and Recommendation, the Court concludes with respect to
Grounds One and Two that petitioner has failed to make a substantial showing that he
has been denied a constitutional right and that with respect to Ground Three he has
failed to demonstrate that reasonable jurists would find it debatable that the claim is
procedurally barred.
Accordingly, petitioner’s request for a certificate of appealability is DENIED.
Petitioner's motion to proceed in forma pauperis is GRANTED, in that the Court
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determines petitioner is financially indigent, but DENIED, in that it has denied his
request for a certificate of appealability.
Date: August 11, 2011

s/James L. Graham
James L. Graham
United States District Judge

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