Smith v. Clark Cnty. Sheriff

Full title: TONY LEE SMITH, Petitioner, v. CLARK COUNTY SHERIFF, Respondent.

Court: UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

Date published: Apr 2, 2013

2:13-cv-00135-GMN-GWF (D. Nev. Apr. 2, 2013)

Opinion

2:13-cv-00135-GMN-GWF

04-02-2013

TONY LEE SMITH, Petitioner, v. CLARK COUNTY SHERIFF, Respondent.

Gloria M. Navarro

ORDER

The petitioner, proceeding in proper person without counsel, presented the Court with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The action was screened by the Court as required by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. It was then dismissed because petitioner had not been convicted and the Court lacked subject matter jurisdiction under the statute. Petitioner now moves the court for a certificate of appealability (ECF Nos. 7 and 8).

Generally, a petitioner must make "a substantial showing of the denial of a constitutional right" to warrant a certificate of appealability. Id. The Supreme Court has held that a petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).

The Supreme Court further illuminated the standard for issuance of a certificate of appealability in Miller-El v. Cockrell, 537 U.S. 322 (2003). The Court stated in that case:

We do not require petitioner to prove, before the issuance of a COA, that some jurists would grant the petition for habeas corpus. Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail. As we stated in Slack, "[w]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong."

Id. at 1040 (quoting Slack, 529 U.S. at 484).

The Court has considered the issues raised by petitioner, with respect to whether they satisfy the standard for issuance of a certificate of appeal, and the Court determines that none meet that standard. Accordingly, the Court will deny petitioner a certificate of appealability.

IT IS THEREFORE ORDERED that petitioner's motions for A CERTIFICATE OF APPEALABILITY (ECF Nos. 7 and 8) are denied.

IT IS FURTHER ORDERED that all other pending motions are denied as moot.

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Gloria M. Navarro

United States District Judge