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GIBSON v. MOTE

United States District Court, N.D. Illinois, Eastern Division


August 10, 2004.

JAMES GIBSON, Plaintiff,
v.
STEPHEN D. MOTE and ATTORNEY GENERAL OF THE STATE OF ILLINOIS, Lisa Madigan, Defendants.

The opinion of the court was delivered by: CHARLES KOCORAS, District Judge

MEMORANDUM OPINION

This matter comes before the court on James Gibson's ("Gibson") application for a certificate of appealability pursuant to 28 U.S.C. § 2253(c). For the reasons set forth below, the application is denied.

BACKGROUND

  James Gibson is currently incarcerated at the Pontiac Correctional Center in Pontiac, Illinois, as a result of his 1991 conviction for first degree murder. On May 18, 2004, we denied Gibson's petition for a writ of habeas corpus which alleged ineffective assistance of counsel and prosecutorial misconduct. On July 6, 2004, we denied Gibson's motion asking us to reconsider certain holdings from our denial of his petition. Gibson now wishes to appeal our decisions, but appellate proceedings cannot commence without a certificate of appealability either from this court or from a circuit judge of the Court of Appeals. 28 U.S.C. § 2253(c); Fed.R. App. Proc. 22(b).

  DISCUSSION

  A court may issue a certificate of appealability for a decision denying a 28 U.S.C. § 2254 petition for writ of habeas corpus "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In order to make this showing, the applicant must demonstrate "that reasonable jurists could debate whether the challenges in his habeas petition should have been resolved differently or that his petition adequately shows a sufficient chance of the denial of a constitutional right that he deserves encouragement to proceed further." Rutledge v. U.S., 230 F.3d 1041, 1047 (7th Cir. 2000).

  Gibson's present application does not persuade us that other jurists would resolve his ineffective assistance of counsel claims differently. Instead he merely rehashes the same arguments contained in his habeas petition and subsequent motion for reconsideration. The same can be said of his claims concerning prosecutorial misconduct. Nor do we find that Gibson's application alleges constitutional deprivations beyond the ones that we firmly rejected in our previous opinions. We accordingly find that his present application does not merit certification to the appellate court under the Rutledge standard.

  CONCLUSION

  For the reasons set forth above, Gibson's application for a certificate of appealability is denied.

20040810

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