Opinion
99-CV-6139 CJS.
June 10, 2004
DECISION and ORDER
By Decision and Order filed on March 19, 2004, the Court denied petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and dismissed the petition. Petitioner appealed, however, on April 30, 2004, the United States Court of Appeals for the Second Circuit dismissed the appeal without prejudice, and directed petitioner, pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, to "promptly move for a certificate of appealability in the district court." Now before the Court is petitioner's application for such a certificate, filed on May 20, 2004.
28 U.S.C. § 2253(c)(2) provides, in relevant part, that "[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." The Court has considered petitioner's application in light of the factors set forth in Miller-El v. Cockrell, 123 S.Ct. 1029, 1039-1042 (2003) ("Under the controlling standard, 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.") (citation and internal quotation marks omitted), and finds that petitioner has not made a substantial showing of the denial of a constitutional right. As explained in the Decision and Order dismissing the petition, this Court believes that petitioner's claims have no merit, thus the Court cannot find 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." Accordingly petitioner's application for a certificate of appealability is denied.
IT IS SO ORDERED.