Opinion
No. 96 Civ. 3442 (WK)
January 31, 2000
ORDER
We have before us three motions dated August 15, 1999, copies of which are attached hereto. The first is entitled "A Motion for the Appointment of Counsel" which Motion we DENY as moot in the light of our rulings on the other two. The second is entitled "Request to Move for an Authorization Order Before a Three Judge Panel From the United States Court of Appeals Under Rule 28 U.S.C. § 2244(b)(3)" which Motion we DENY on the ground that neither the statute cited nor any other statute of which we are aware gives us the authority to enter such an order. The third motion, "Motion for Issuance of Certificate of Probable Cause for Appeal" (Hereinafter the "COA Motion") seems to proceed on the theory that previous orders that we had entered (either because of the technical mistakes of our own or some other reason) were not delivered to petitioner in time for him to object. With respect to that allegation, its substance was contained in two letters petitioner had addressed to us dated June 15 and June 30, 1999. In our Order dated July 22, 1999, we construed petitioner's June 15, 1999 letter as a motion for reconsideration of our July 30, 1998 Order and we granted the motion. Upon such reconsideration of the merits, we adhered to our original determination denying petitioner's application to file a second petition for habeas corpus and dismissing the petition as an abuse of the writ. We construed petitioner's letter of June 30, 1999 as a motion for relief under Rule 60(b) and denied such motion. The relevant orders are annexed hereto.
On August 2, 1999 petitioner filed a notice of appeal of our July 22 Order, which appeal was dismissed and petitioner was directed by the Court of Appeals to move for a certificate of appealability (hereinafter "COA") in the district court.
A COA may issue "only if the applicant has made a substantial showing of the denial of a constitutional right" 28 U.S.C. § 2253(c)(2); Soto v. United States (2d Cir. 1999) 185 F.3d 48, 51. Further, pursuant to 28 U.S.C. § 2253(c)(3), we are required to specify in a COA those constitutional issues which we certify as appealable. Here the underlying second petition is a claim of ineffective assistance of appellate counsel. In our July 30, 1998 Order, upon careful examination of the alleged instances of ineffectiveness, we found "no basis to support any of petitioner's claims put forth in support of his argument that appellate counsel was ineffective. . . ." July 30, 1998 Order, p. 4. The COA Motion does not contain any new information concerning this claim. Accordingly, we do not find that petitioner has made the requisite "substantial showing of the denial of a constitutional right" by making factual allegations that satisfy the requirements of Strickland v. Washington (1984) 466 U.S. 668.
Paragraph 5 of the COA Motion suggests that e should have recused ourselves and referred the matter to an unbiased judge. Having considered that suggestion, we find it untenable. Taking all above factors into consideration, we conclude that there is no basis for a COA and DENY the request.
A copy of this Order shall be mailed to petitioner, return receipt requested, at the return address on his most recent submission to the Court:
Ignacio Reynoso; DIN# 86A-5178 Southport Correctional Facility P. O. Box 2000 Pine City, New York 14871
SO ORDERED.