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Chad Thomas Elie v. Kelly Harrington

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


September 20, 2011

CHAD THOMAS ELIE,
PETITIONER,
v.
KELLY HARRINGTON, WARDEN, AND EDMUND BROWN, JR., ATTORNEY
GENERAL OF THE STATE OF CALIFORNIA, RESPONDENTS.

The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER (1) DENYING MOTION FOR CERTIFICATE OF APPEALABILITY; & (2) DENYING MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL

On June 9, 2011, the Court issued an order denying Petitioner Chad Thomas Elie's petition for writ of habeas corpus. (Doc. No. 28.) The Court also denied a certificate of appealability. (Id.) On June 27, 2011, Petitioner, proceeding pro se, filed a motion for extension of time to file a notice of appeal, request a certificate of appealability, and a motion to proceed in forma pauperis. (Doc. No. 30.) On June 30, 2011, the Court granted Petitioner's motion for extension to file notice of appeal and other related motions. (Doc. No. 31.) On September 15, 2011, Petitioner filed a notice of appeal (Doc. No. 32) along with a motion to proceed in forma pauperis on appeal (Doc. No. 33) and a motion for certificate of appealability from district court. (Doc. No. 35.)

According to the Federal Rules of Appellate Procedure, a petitioner may not seek an appeal of a claim arising out of state court detention unless the petitioner obtains a certificate of appealability from either the district judge or a circuit judge under 28 U.S.C. § 2253. See Fed. R. App. P. 22(b). Section 2253 states that a certificate of appealability may only issue if the petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(1). Where, as here, the district court has rejected the petitioner's constitutional claims on the merits, "[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

The Court previously denied a certificate of appealability. (See Doc. No. 28.) The Court will alternatively consider Petitioner's current motion as a motion for reconsideration of that denial. The Court has carefully reviewed Petitioner's original petition, this motion, and other related papers. From that careful review, the Court sees no good grounds for issuing a certificate of appealability in light of the controlling legal standards. Because Petitioner has not made a "substantial showing of a denial of a constitutional right," Slack, 529 U.S. at 483-84, the Court declines to issue a certificate of appealability. Because the Court denies Petitioner's request for a certificate of appealability, the Court denies as moot Peitioner's motion to proceed in forma pauperis on appeal.

IT IS SO ORDERED.

20110920

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