Vartinelli v. Burt

Full title: CARLO VARTINELLI, Petitioner, v. S.L. BURT, Respondent

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Feb 16, 2006

Civil Action No. 05-CV-70949-DT (E.D. Mich. Feb. 16, 2006)

Opinion

Civil Action No. 05-CV-70949-DT.

February 16, 2006

ORDER DENYING MOTION FOR A CERTIFICATE OF APPEALABILITY AND DENYING LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

LAWRENCE ZATKOFF, District Judge

Petitioner has filed a motion for a certificate of appealability concerning this Court's dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 on statute of limitations grounds.

Before Petitioner may appeal this Court's dispositive decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c)(1)(a); Fed.R.App.P. 22(b). The Court must either issue a certificate of appealability indicating which issues satisfy the required showing or provide reasons why such a certificate should not issue. 28 U.S.C. § 2253(c)(3); Fed.R.App.P. 22(b); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6^th Cir. 1997).

A certificate of appealability 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). When a federal district court rejects a habeas claim on the merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists would find the district court's assessment of the constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). "A petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, a district court may not conduct a full merits review, but must limit its examination to a threshold inquiry into the underlying merit of the petitioner's claims. Id. at 336-37.

When a federal district court denies a habeas claim on procedural grounds without addressing the claim's merits, a certificate of appealability should issue if it is shown that jurists of reason would find it debatable whether the petitioner states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. See Slack, 529 U.S. at 484-85. When a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petition should be allowed to proceed further. In such a circumstance, no appeal is warranted. Id.

This Court concluded that Petitioner's claims are barred by the one-year statute of limitations applicable to federal habeas actions. See 28 U.S.C. § 2244(d). Petitioner has not established that the one-year period should be statutorily tolled due to his lack of transcripts for a certain period of time. See Jihad v. Hvass, 267 F.3d 803, 806 (8^th Cir. 2001); Grayson v. Grayson, 185 F. Supp. 2d 747, 751-52 (E.D. Mich. 2002); see also United States v. MacCollom, 426 U.S. 317 (1976). Petitioner has also not established that the one-year period should be equitably tolled. See Dunlap v. United States, 250 F.3d 1001, 1008-09 (6^th Cir. 2001); see also Souter v. Jones, 395 F.3d 577, 588-90 (6^th Cir. 2005). The Court thus concludes that Petitioner has not shown that reasonable jurists would find this Court's dismissal of his habeas petition on statute of limitations grounds debatable.

Accordingly, the Court DENIES Petitioner's motion for a certificate of appealability. Given this determination, the Court also DENIES leave to proceed on appeal in forma pauperis. See Fed.R.App.P. 24(a).

IT IS SO ORDERED.