The opinion of the court was delivered by: Robert H. Whaley United States District Judge
ORDER DENYING CERTIFICATE OF APPEALABILITY
Petitioner is a state prisoner represented by Conrad Petermann with a habeas corpus petition pursuant to 28 U.S.C. § 2254.
On December 24, 2009, Petitioner filed a notice of appeal (Ct. Rec. 22) of the December 16, 2009, order adopting the report and recommendation and dismissing the petition (Ct. Rec. 20). On December 24, 2009, Petitioner filed a request for a certificate of appealability (Ct. Rec. 23). On December 29, 2009, and September 27, 2010, Petitioner was advised a certificate of appealability is required to process the appeal.
A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253:
(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings.
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from-- (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
Therefore, final orders issued by a federal district court in habeas corpus proceedings are reviewable by the circuit court of appeals. 28 U.S.C. § 2253(a). In order to have final orders reviewed, Petitioner must obtain a certificate of appealability. 28 U.S.C. § 2253(c). This court will issue a certificate of appealability when a petitioner makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the Petitioner must establish that "reasonable jurists could debate whether (or, for that matter, agree that) 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, 120 S.Ct. 1595, 1603-04 (2000)(quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
Petitioner makes no such showing. The court certifies that any appeal of this dismissal could not be taken in good faith. Consequently, the court certifies that pursuant to 28 U.S.C § 1915(a)(3), an appeal from this decision could not be taken in good faith, and there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
Accordingly, IT IS HEREBY ORDERED:
1. The Court DENIES Petitioner's request for issuance of a certificate of appealability.
IT IS SO ORDERED. The District Court Executive is directed to enter this Order, forward copies to counsel and ...