Opinion
CASE NO. 2:10-CV-00402
2013-09-13
NORMAN D. CHESTER, JR. Petitioner, v. DAVID BOBBY, WARDEN, Respondent.
JUDGE SMITH
MAGISTRATE JUDGE ABEL
OPINION AND ORDER
On July 31, 2013, the Magistrate Judge issued a Report and Recommendation recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254 be dismissed. Petitioner has filed Objections to the Magistrate Judge's Report and Recommendation. Petitioner objects to the Magistrate Judge's recommendation of dismissal of claim four and portions of claim one as procedurally defaulted. He objects to the Magistrate Judge's recommendation of dismissal of the remainder of his claims as without merit. Petitioner raises no new arguments, but now contends that he alleges structural errors which warrant relief.
Pursuant to 28 U.S.C. § 636(b), this Court conducts a de novo review. For the reasons detailed in the Magistrate Judge's Report and Recommendation, Petitioner's Objections, Doc. No. 36, are OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This action is hereby DISMISSED.
Petitioner also seeks a certificate of appealability. When a claim has been denied 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 (1983). Slack v. McDaniel, 529 U.S. 473, 484. 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. Where a claim has been dismissed on procedural grounds, a certificate of appealability shall issue where jurists of reason would find it debatable whether the Court was correct in its procedural ruling that petitioner waived his claims of error, and whether petitioner has stated a viable constitutional claim. Slack v. McDaniel, 529 U.S. at 484-85. Both of these showings must be made before a court of appeals will entertain the appeal. Id.
This Court is not persuaded that reasonable jurists would debate whether petitioner's § 2254 petition should have been resolved differently. Petitioner's request for a certificate of appealability therefore is DENIED.
IT IS SO ORDERED.
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GEORGE C. SMITH
United States District Judge