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Cook v. Curry

December 16, 2008

DONALD KENDRICKS COOK, PETITIONER,
v.
BEN CURRY, ET AL., RESPONDENT.



The opinion of the court was delivered by: Arthur L. Alarcón United States Circuit Judge Sitting by Designation

ORDER

On October 21, 2008, this Court denied Petitioner Donald Kendricks Cook's ("Petitioner") application for a writ of habeas corpus. (Doc. 23). Petitioner has filed a timely notice of appeal. (Doc. 25). However, before Petitioner can appeal this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).

A certificate of appealability may issue under 28 U.S.C. § 2253(c)(2) "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To meet this standard, Petitioner must show: (1) that the issues are debatable among jurists of reason; or (2) that a court could resolve the issues in a different manner; or (3) that the questions are adequate to deserve encouragement to proceed further. Lambright v. Stewart, 220 F.3d 1022, 1024-25 (9th Cir. 2000) (citing Slack v. McDaniel, 529 U.S. 473 (2000); Barefoot v. Estelle, 463 U.S. 880 (1983)). Petitioner does not have to show "that he should prevail on the merits [since he] has already failed in that endeavor ." Lambright, 220 F.3d at 1025 (citing Barefoot, 463 U.S. at 893 n. 4).

Petitioner's arguments do not present issues that are debatable among jurists of reason; and therefore this Court will not encourage Petitioner to seek further review. This Court also finds that no other court would resolve the issues presented in a different manner.

Accordingly, it is HEREBY ORDERED that a certificate of appealability shall not issue.

20081216

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