Williams v. Warden Chillicothe Correctional Institution

Filing 10

OPINION AND ORDER DECLINING issuance of a certificate of appealability and CERTIFYING that the appeal is not taken in good faith. Signed by Judge George C Smith on 8-29-11. (ga)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GARY L. WILLIAMS,
Petitioner,
CASE NO. 2:11-cv-537
v.

JUDGE GEORGE C. SMITH

WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,

Magistrate Judge Kemp

Respondent.
OPINION AND ORDER
In an Opinion filed on July 26, 2011, the Court dismissed
this case.
2, 2011.

Petitioner filed a timely notice of appeal on August

He did not pay the appellate filing fee nor did he file

a motion for leave to proceed on appeal in forma pauperis.
Because the Court (against petitioner’s wishes) construed
the petition he filed as seeking habeas corpus relief under 28
U.S.C. §2254, it will construe his notice of appeal as a request
for a certificate of appealability.
Where the Court dismisses a claim on the merits, a
certificate of appealability

may issue only if the petitioner

“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, 103 S.Ct. 3383, 77 L.Ed.2d
1090 (1983). Slack v. McDaniel, 529 U.S. 473, 483-44, (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 ....

Id.
For the reasons set forth in the Court’s Opinion and Order
adopting the Magistrate Judge’s Report and Recommendation, and
for the reasons set forth in that Report and Recommendation, the
Court finds that reasonable jurists would not debate either that
this case is, in fact, an action seeking habeas corpus relief, or
that it is barred by the statute of limitations.

The Court

therefore DECLINES to issue a certificate of appealability.
Further, should petitioner submit an in forma pauperis
application (which he has not yet done), the Court, for similar
reasons, CERTIFIES that the appeal is not taken in good faith.
IT IS SO ORDERED.

/s/ George C. Smith
George C. Smith
United States District Judge

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