Opinion
CASE NO. 2:15-CV-00560
04-15-2016
STEPHEN H. WHITT, Petitioner, v. TOM SCHWEITZER, WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.
Magistrate Judge Elizabeth A. Preston Deavers OPINION AND ORDER
On March 30, 2016, the Court denied Petitioner's Motion for Judgment as a Matter of Law. (ECF No. 26.) Petitioner has filed a Motion for Certificate of Appealability. (ECF No. 28.) For the reasons that follow, Petitioner's Motion for Certificate of Appealability (ECF No. 28) is DENIED.
Petitioner challenges his April 2010 convictions in the Coshocton County Court of Common Pleas on rape and gross sexual imposition. Petitioner seeks reconsideration of the Court's June 1, 2015 Opinion and Order granting Respondent's Motion to Transfer the case to the United States Court of Appeals for the Sixth Circuit as a successive petition. The Court denied Petitioner's request.
"In contrast to an ordinary civil litigant, a state prisoner who seeks a writ of habeas corpus in federal court holds no automatic right to appeal from an adverse decision by a district court." Jordan v. Fisher, -- U.S. --. --, 135 S.Ct. 2647, 2650 (2015); 28 U.S.C. § 2253(c)(1)(requiring a habeas petitioner to obtain a certificate of appealability in order to appeal.) The petitioner must establish the 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 (2000) (recognizing codification of Barefoot in 28 U.S.C. § 2253(c)(2)). 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.'" Slack, 529 U.S. at 484 (quoting Barefoot, 463 U.S., at 893 n. 4).
Where the Court dismisses a claim on procedural grounds, however, 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." Id. Thus, there are two components to determining whether a certificate of appealability should issue when a claim is dismissed on procedural grounds: "one directed at the underlying constitutional claims and one directed at the district court's procedural holding." Id. at 485. The court may first "resolve the issue whose answer is more apparent from the record and arguments." Id.
Petitioner has failed to establish that reasonable jurists would debate whether the Court was correct in denying Petitioner's motion. Petitioner's February 2015 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 plainly constitutes a successive petition for which Petitioner must obtain authorization for filing from the United States Court of Appeals. Petitioner's Motion for Certificate of Appealability (ECF No. 28) therefore is DENIED.
IT IS SO ORDERED.
Date: April 15, 2016
s/James L. Graham
JAMES L. GRAHAM
United States District Judge