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Chiesa v. Veal

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 2, 2009

PETER JORDAN CHIESA, PETITIONER,
v.
MARTIN VEAL, WARDEN RESPONDENT.

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

ORDER

On January 20, 2009, this Court denied Peter Jordan Chiesa's ("Petitioner") application for a writ of habeas corpus. Petitioner filed a Notice of Appeal on January 28, 2009. (Doc. 36). Pending before this Court is Petitioner's request for a certificate of appealability. (Doc. 37). Petitioner seeks to certify "the issue of whether Petitioner was denied his right to be free from a cruel and unusual punishment under the Eighth Amendment, in a non-capital case, as his sentence was grossly disproportionate in that it was not commensurate with petitioner's culpability due to his undisputed vascular dementia." (Id. at 2).

"[A] state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition." Miller-El v. Cockrell, 537 U.S. 322, 335 (2003); 28 U.S.C. § 2253. Therefore, before Petitioner can appeal this Court's judgment, a certificate of appealability must issue to provide the Ninth Circuit jurisdiction to consider this appeal. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1).

A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Under the controlling standard, a petitioner must sho[w] that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. " Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)(internal quotations omitted).

Petitioner has failed to cite a non-capital case that requires state legislators to grant judges the authority to make individual assessments that will permit a trial court to deviate from imposing a mandatory life-sentence.

Accordingly, IT IS HEREBY ORDERED that a certificate of appealability shall not issue because Petitioner has failed to show that reasonable jurists would debate this Court's denial of Petitioner's application for a writ of habeas corpus.

20090202

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