JUDD v. LAPPIN

Full title: KEITH RUSSELL JUDD, Petitioner, v. HARLEY G. LAPPIN, et al., Respondents

Court: United States District Court, S.D. Ohio, Eastern Division

Date published: Nov 15, 2010

Civil Action 2:10-CV-731 (S.D. Ohio Nov. 15, 2010)

Opinion

Civil Action 2:10-CV-731.

November 15, 2010

ORDER

EDMUND SARGUS JR., District Judge

Petitioner, a federal prisoner currently incarcerated at the Federal Correctional Institution in Texarkana, Texas, originally filed a habeas corpus action under 28 U.S.C. § 2254 in this Court, challenging a judgment of conviction issued by a state court of New Mexico. Petitioner thereafter filed an Amended Petition under 28 U.S.C. § 2241, challenging "any future confinement or prosecution [by the United States] under the Gun Control Act, 18 U.S.C. § 922(g) at the moment of release from prison. . . ." Amended Petition, at 1. On September 7, 2010, this Court dismissed the action for lack of subject matter jurisdiction and declined to order the transfer of the action to a different district. Opinion and Order, Doc. No. 7. Final judgment was entered that same date. Judgment, Doc. No. 8. Petitioner has filed notices of appeal. Notice of Appeal, Doc. Nos. 9, 11, 15. This matter is now before the Court on petitioner's Motion for Certificate of Appealability, Doc. No. 17, and Motion for Court to Certify Actual Innocence Claims Involving Alford Plea under 28 U.S.C. § 2254 Maintaining Innocence in State Court Proceedings, Doc. No. 18.

When a court dismisses a habeas corpus action 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.

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Thus, there are two components to determining whether a certificate of appealability should issue when a petition 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 stated in this Court Opinion and Order dismissing the action, Doc. No. 7, the Court concludes that jurists of reason would not find it debatable whether this Court was correct in its dismissal of the action. The Court therefore DECLINES to issue a certificate of appealability.

Petitioner's motions, Doc. Nos. 17, 18, are therefore DENIED.