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Gay v. Frey

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS


September 19, 2006

ANTHONY GAY, PETITIONER,
v.
SHELTON FREY, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Michael M. Mihm United States District Judge

ORDER

This matter is now before the Court on a Petition for a Certificate of Appealability by Petitioner, Shelton Frey ("Frey"), from the denial of his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Court declines to issue a Certificate of Appealability.

DISCUSSION

As amended by the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2253 now requires a certificate of appealability in cases arising under 28 U.S.C. § 2254. A certificate may only issue if the applicant makes a substantial showing of the denial of a constitutional right, and any certificate issued must specify what claim(s) merit appellate review.

In considering whether a certificate of appealability should issue, the Court notes that in denying Gay's § 2254 petition, the Court found that Gay's direct attack on his conviction ended on June 28, 1996. He did not begin to pursue post-conviction relief in state court until June 13, 2000, when he filed his post-conviction petition in the Circuit Court of Rock Island County. His pursuit of post-conviction relief ended on May 25, 2005, with the issuance of the Illinois Supreme Court mandate, and his § 2254 petition was not submitted until March 8, 2006. As Gay's one-year period of limitation under § 2244(d) expired on or about June 28, 1997, nearly nine years before he submitted his § 2254 petition, his Petition was clearly time-barred.

Given that he has presented no claims that could be debatable among jurists of reason, Gay has failed to make a substantial showing of the denial of a constitutional right. Having found no issue in this proceeding which warrants appellate review, this Court cannot in good faith issue a certificate of appealability for his § 2254 Petition.

CONCLUSION

For the reasons set forth herein, the Court declines to issue a certificate of appealability, and Gay's Petition for Issuance of a Certificate of Appealability [#13] is DENIED.

ENTERED this 18th day of September, 2006.

20060919

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