The opinion of the court was delivered by: Robert H. Whaley United States District Judge
ORDER DENYING PETITIONER'S MOTION FOR EXTENSION OF TIME; DENYING CERTIFICATE OF APPEALABILITY
On October 26, 2009, the Court denied Petitioner's Petition for Writ of Habeas Corpus (Ct. Rec. 27). On November 30, 2009, Petitioner filed a Motion for Extension of Time to file a Notice of Appeal. In his motion, Petitioner indicated that he had prepared a Notice of Appeal and accompanying Request for a Certificate of Appealability, in order to meet the deadline of November 25, 2009. Petitioner indicated that because the law library was closed throughout the Thanksgiving week, he was unable to get copies made to meet the deadline date. Petitioner asked for a 15-day extension. On December 23, 2009, the Court granted the Motion for Extension of time and ordered that Defendant file the Notice of Appeal on or before December 28, 2009 (Ct. Rec. 30). Rather than file the notice, Petitioner then filed a letter to the Court in which he explained that although he asked for a two-week extension, he only received a one-week extension (Ct. Rec. 31). This is not true. Assuming the deadline for filing the Notice of Appeal was November 25, 2009, as stated by Petitioner, by extending the time to file the Notice to December 28, 2009, the Court granted an extension of at least thirty days. The Court does not find good cause to extend the time with which to file a notice of appeal.
Because this is the Court's final order in this matter, the December 1, 2009 amendments to Rule 11(a) of the Federal Rules Governing Section 2254 Cases require the Court to determine in this Order whether a certificate of appealability should issue. The Court finds additional briefing on this issue unnecessary.
The Antiterrorism and Effective Death Penalty Act of 1996 requires a habeas petitioner appealing the denial of a 28 U.S.C. § 2254 to obtain a certificate of appealability. 28 U.S.C. § 2253(c). A court may issue a certificate of appealability only if the "applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A petitioner must show 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." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotations omitted). The decision to issue a certificate of appealability turns not on the court's assessment of the applicant's chances for success on appeal, but whether the appeal would raise material and debatable questions. See Miller-El v. Cockrell, 537 U.S. 322, 342 (2003).
The Court finds that Petitioner's claims do not justify the issuance of a certificate of appealability. Petitioner has not made a substantial showing of the denial of a constitutional right.
Accordingly, IT IS HEREBY ORDERED:
1. Petitioner's Motion for Extension of Time (Ct. Rec. 31) is DENIED.
2. The Court declines to issue a certificate of appealability.
The District Court Executive is directed to enter this Order, forward copies to Petitioner and counsel and close the file.
© 1992-2010 VersusLaw ...