COX v. PALMER

Full title: MICHAEL STEVE COX, Petitioner, v. J. PALMER, et al., Respondents

Court: United States District Court, D. Nevada

Date published: Feb 7, 2011

3:10-cv-00596-ECR-RAM (D. Nev. Feb. 7, 2011)

Opinion

3:10-cv-00596-ECR-RAM.

February 7, 2011

ORDER

EDWARD REED, District Judge

Petitioner submitted a habeas corpus petition pursuant to 28 U.S.C. § 2255, but neither paid the required filing fee nor filed an appropriate motion for leave to proceed in forma pauperis. The action was ultimately dismissed when petitioner failed to comply with the Court's order to pay the fee of apply to proceed in forma pauperis. Petitioner has filed a notice of appeal. Because the dismissal was without prejudice, the court did not address the issue of a certificate of appealability.

Because the appeal has been filed and the Court of Appeals requires this Court to decide whether it is appropriate to issue a certificate of appealability, the Court will do so. The certificate of appealibility shall be denied.

Generally, a petitioner must make "a substantial showing of the denial of a constitutional right" to warrant a certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). "The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Id. (quoting Slack, 529 U.S. at 484). In order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are debatable among jurists of reason; that a court could resolve the issues differently; or that the questions are adequate to deserve encouragement to proceed further. Id.

Pursuant to the December 1, 2009 amendment to Rule 11 of the Rules Governing Section 2254 and 2255 Cases, district courts are required to rule on the certificate of appealability in the order disposing of a proceeding adversely to the petitioner or movant, rather than waiting for a notice of appeal and request for certificate of appealability to be filed. Rule 11(a). This Court has considered the issues raised by petitioner, with respect to whether they satisfy the standard for issuance of a certificate of appealability, and determines that none meet that standard. The Court will therefore deny petitioner a certificate of appealability.

IT IS THEREFORE ORDERED that no certificate of appealability shall issue in this matter.

Dated, this 7th day of February, 2011.