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Earnest Cassell Woods, Ii v. Kevin Chappell

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


February 21, 2013

EARNEST CASSELL WOODS, II,
PETITIONER,
v.
KEVIN CHAPPELL, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY

On December 26, 2012, Petitioner, a state prisoner proceeding pro se, submitted a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) The Court dismissed the matter on January 11, 2013, on the grounds that it was second or successive and thus barred by the "gatekeeper" provision of 28 U.S.C. § 2244(b)(3)(A). (See Order dated Jan. 11, 2013, ECF No. 4.) On February 14, 2013, Petitioner filed a Notice of Appeal, which has been construed as a request for a certificate of appealability.

In order to appeal a final order in a 28 U.S.C. § 2254 case, a petitioner must obtain a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b). A district court should issue a certificate of appealability in a 28 U.S.C. § 2254 case when the appeal presents a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). If jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, or that the court's procedural ruling was correct, a certificate should issue. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

For the reasons stated in this Court's January 11, 2013 Order [ECF No. 4], the Court concludes that jurists of reason would not find it debatable whether this Court was correct in ruling that Petitioner must first obtain permission from the Ninth Circuit to file a second or successive petition. Accordingly the Request for Certificate of Appealability is DENIED.

IT IS SO ORDERED.

Copies to: ALL PARTIES

20130221

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