Murray v. Murray

Full title: GARRY MURRAY, Petitioner, v. TIMOTHY MURRAY, Superintendent, Respondent

Court: United States District Court, N.D. New York

Date published: Jan 2, 2008

9:04-CV-0027 (LEK) (RFT) (N.D.N.Y. Jan. 2, 2008)

Opinion

9:04-CV-0027 (LEK) (RFT).

January 2, 2008

GARRY MURRAY, Petitioner, pro se, 99-A-2434.

GERALD J. ROCK, ESQ., HON. ANDREW M. CUOMO, Office of the Attorney General, State of New York, Department of Law, The Capitol, Albany, New York.

ORDER

LAWRENCE KAHN, District Judge

On January 9, 2004, Petitioner Garry Murray ("Murray" or "Petitioner") filed a petition for a writ of habeas corpus with the Court. Dkt. No. 1. On June 14, 2007, Magistrate Judge Randolph F. Treece filed a Report-Recommendation, recommending that the Petition be denied. Docket No. 40. The Report-Recommendation was approved, and the Petition Dismissed, by a Decision and Order of this Court filed September 11, 2007. Docket No. 44. Murray has appealed that dismissal to the Second Circuit and now seeks a Certificate of Appealability ("COA"). Docket No. 52. 28 U.S.C. § 2253(c)(1) provides in relevant part that:

Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from —

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or

(B) the final order in a proceeding under section 2255.¹

1 Rule 22 of the Federal Rules of Appellate Procedure also provides that an appeal may not proceed "unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)." See Fed.R.App.P. 22(b).

A COA may only be issued "if the applicant has made a substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(2). After reviewing the relevant portions of the file in this action, and for the reasons set forth in the Court's Decision and Order and Magistrate Judge Treece's Report-Recommendation, the Court finds that Murray has failed to make such a showing herein. Therefore, the Court denies his request.

WHEREFORE, it is hereby

ORDERED, that Petitioner's application for a Certificate of Appealability (Docket No. 52) is denied, and it is further

ORDERED, that the Clerk of the Court serve a copy of this Order upon the parties in accordance with the Local Rules.

IT IS SO ORDERED.