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Simmons v. Terhune

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


July 23, 2009

CARL SIMMONS, PETITIONER,
v.
TERHUNE, RESPONDENT.

The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER DENYING MOTION FOR CERTIFICATE OF APPEALABILITY

On January 28, 2009, Petitioner Carl Simmons ("Petitioner"), a state prisoner proceeding pro se, filed a second amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and a motion for leave to proceed in forma pauperis ("IFP"). This Court denied the IFP motionon February 17, 2009 for failure to demonstrate an inability to pay the filing fee.

On March 16, 2009, Petitioner filed a notice of appeal. The Court of Appeals construed this as a motion for a Certificate of Appealability ("COA"), and directed this Court to decide the motion. For the reasons stated below, the Court DENIES the motion for a COA.

I. DISCUSSION

Petitioner is a prisoner at Calipatria State Prison. On June 20, 2008, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The original petition was dismissed without prejudice for failure to pay the filing fee or provide adequate proof of Petitioner's inability to pay. On August 6, 2008, Petitioner filed a First Amended Petition as well as a motion for leave to proceed IFP. On January 9, 2009, this Court denied the motion for leave to proceed IFP for failure to provide the court with sufficient information to determine Petitioner's financial status.

On January 28, 2009, Petitioner filed a second amended complaint and IFP motion, which included an "Inmate Statement Report." The statement indicated a $35.78 balance in Petitioner's prison trust account. In light of this balance, on February 19, 2009, this Court denied the IFP motion, finding that Petitioner was able to pay the $5.00 filing fee per 28 U.S.C. § 1914(a). Petitioner then filed a notice of appeal on March 16, 2009. The Court of Appeals construed the appeal as a motion for a COA and ordered this Court to decide the motion.

Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 State. 1214 (1996) ("AEDPA"), a state prisoner may not appeal the denial of a section 2254 habeas petition unless he obtains a COA from a district or circuit judge. 28 U.S.C. § 2253 (c)(1)(A); see also United States v. Asrar, 116 F.3d 1268, 1269-70 (9th Cir. 1997) (holding that district courts retain authority to issue certificates of appealability under the AEDPA).

In deciding whether to grant a COA, a court must either indicate the specific issues supporting a certificate or state reasons why a certificate is not warranted. Asrar, 116 F.3d at 1270. A court may issue a COA only if the applicant has made a "substantial showing" of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). This requirement means:

Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy section 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 ... When the district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition 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.

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Here, the Court never denied the merits of Petitioner's claims because the second amended petition was dismissed without prejudice for failure to pay the $5 filing fee. And because Petitioner's prison trust account had a balance of $35.78, no reasonable jurist would find it debatable whether this Court was correct in denying Petitioner's IFP motion.

II. CONCLUSION &ORDER

For the reasons stated above, the Court DENIES Petitioner's motion for a COA.

IT IS SO ORDERED.

20090723

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