Opinion
3:11-cv-00019-LRH-WGC
01-06-2014
WILLIE SAMPSON, Petitioner, v. JACK PALMER, et al., Respondents.
ORDER
This action is a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by a Nevada state prisoner represented by counsel.
On October 22, 2013, this Court issued an order striking petitioner's various pro se motions and directing the Clerk to accept no further documents filed by petitioner in pro se. (ECF No. 74). As this case is on-going, the Court's order also set a deadline for the filing of an answer. (Id.).
On November 25, 2013, petitioner filed a notice of appeal. (ECF No. 75). This Court construes petitioner's notice of appeal as a motion for a certificate of appealability. In order to proceed with his appeal, petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9 Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9 Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). 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.
In the present case, no reasonable jurist could conclude that this Court's order of October 22, 2013, was in error. Petitioner is not entitled to a certificate of appealability.
IT IS THEREFORE ORDERED that petitioner's request for a certificate of appealability (ECF No. 75) is DENIED.
IT IS FURTHER ORDERED that the Clerk of Court shall send a copy of this order to the United States Court of Appeals for the Ninth Circuit.
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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE