Calhoun v. Richards

Filing 21

ORDER denying 17 Motion for Certificate of Appealability; by Judge Robert S. Lasnik.(SA)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE _______________________________________ ) RICKEY CALHOUN, ) ) Petitioner, ) v. ) ) DR. HENRY RICHARDS, ) ) Respondent. ) _______________________________________)

Case No. C08-0974RSL ORDER DENYING CERTIFICATE OF APPEALABILITY

This matter comes before the Court on petitioner's "Notice of Appeal" which the
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Court considers a request for a certificate of appealability under 28 U.S.C. § 2253. Because
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petitioner filed his notice of appeal after April 24, 1996, his appeal is governed by the
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Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which worked substantial
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changes to the law of habeas corpus. Under the amended version of 28 U.S.C. § 2253(c), a
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petitioner may not appeal the denial of a habeas corpus petition unless the district court or the
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Ninth Circuit issues a certificate of appealability identifying the particular issues that may be
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pursued on appeal. United States v. Asrar, 116 F.3d 1268 (9th Cir. 1997).
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To obtain a certificate of appealability, the petitioner must make a substantial
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showing of the denial of a constitutional right. "Obviously the petitioner need not show that he
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should prevail on the merits. He has already failed in that endeavor." Barefoot v. Estelle, 463
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U.S. 880, 893 n.4 (1983). Rather, he must demonstrate that the resolution of the habeas petition
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is debatable among reasonable jurists or that the issues presented were "adequate to deserve
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ORDER DENYING CERTIFICATE OF APPEALABILITY

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encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Where a petition is dismissed on procedural grounds, the Court must determine whether "jurists of reason" would debate (1) whether the petition states a valid claim of the denial of a constitutional right and (2) whether the district court's procedural ruling was correct. Slack, 529 U.S. at 484. Having reviewed the record in this case, including the Report and Recommendation of the Honorable James P. Donohue, United States Magistrate Judge, the Court finds that the dismissal of petitioner's two grounds for relief is not debatable among reasonable jurists. Petitioner's claims should not, therefore, be the subject of an appeal.

For all of the foregoing reasons, petitioner's request for a certificate of appealability is DENIED. Dated this 12th day of January, 2009.

A

Robert S. Lasnik United States District Judge

ORDER DENYING CERTIFICATE OF APPEALABILITY

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