Moreland v. Bradshaw

Filing 120

ORDER TO FILE MOTION FOR CERTIFICATE OF APPEALABILITY - Because this Court must determine in the first instance whether a certificate of appealabilityshould issue, Petitioner shall file his motion for certificate of appealability not later than June 15, 2009. Signed by Magistrate Judge Michael R Merz on 5/23/2009. (kopf1, )

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON SAMUEL MORELAND, : Petitioner, : -vsMARGARET BRADSHAW, Warden, : Respondent. Case No. 3:05-cv-334 District Judge Thomas M. Rose Magistrate Judge Michael R. Merz ORDER TO FILE MOTION FOR CERTIFICATE OF APPEALABILITY On April 10, 2009, this Court entered final judgment denying the Petition for writ of habeas corpus (Doc. Nos. 117, 118). Petitioner timely appealed on May 5, 2009 (Doc. No. 119). Before an appeal can proceed, Petitioner must obtain a certificate of appealability. 28 U.S.C. 2253 as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104132, 110 Stat. 1214)(the "AEDPA"), provides in pertinent part: (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. -1- (3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2). District courts have the power to issue certificates of appealability under the AEDPA in 2254 cases. Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063 (6th Cir. 1997); Hunter v. United States, 101 F.3d 1565 (11th Cir. 1996)(en banc). Likewise, district courts are to be the initial decisionmakers on certificates of appealability under 2255. Kincade v. Sparkman, 117 F.3d 949 (6th Cir. 1997)(adopting analysis in Lozada v. United States, 107 F.3d 1011, 1017 (2d Cir. 1997). Issuance of blanket grants or denials of certificates of appealability is error, particularly if done before the petitioner requests a certificate. Porterfield v. Bell, 258 F.3d 484(6th Cir. 2001); Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). To obtain a certificate of appealability, a petitioner must show at least that "jurists of reason would find it debatable whether the petition states a valid claim of denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). That is, it must find that reasonable jurists would find the district court's assessment of the petitioner's constitutional claims debatable or wrong or because they warrant encouragement to proceed further. Banks v. Dretke, 540 U.S. 668, 705 (2004); MillerEl v. Cockrell, 537 U.S. 322, 336 (2003). If the district court dismisses the petition on procedural grounds without reaching the constitutional questions, the petitioner must also show that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 529 U.S. at 484, 120 S. Ct. at 1604. The procedural issue should be decided first so as to avoid unnecessary constitutional rulings. Slack, 529 U.S. at 485, citing Ashwander v. TVA, 297 U.S. 288, 347 (1936)(Brandeis, J., concurring). The first part of this test is equivalent to making a substantial showing of the denial of a constitutional right, including showing that reasonable jurists could -2- debate whether the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further, Slack v. McDaniel, 529 U.S. 473 at 484, 120 S. Ct. 1595, 1604, 146 L. Ed. 2d 542 (2000), quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983). Because this Court must determine in the first instance whether a certificate of appealability should issue, Petitioner shall file his motion for certificate of appealability not later than June 15, 2009. May 23, 2009. s/ Michael R. Merz United States Magistrate Judge -3-

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