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Hayes v. Shaw

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS


September 20, 2006

LARRY CHARBERT HAYES, PETITIONER,
v.
FRANK SHAW, 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 Petitioner, Larry Hayes' ("Hayes"), Notice of Intent to Appeal from the dismissal of his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, which the Court construes as a Motion for a Certificate of Appealability.*fn1 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 dismissing Hayes' § 2254 petition, the Court found that his petition was an improper attempt to bring a second or successive petition without first receiving permission from the Court of Appeals. Accordingly, his Petition was dismissed for lack of jurisdiction.

Given that he presented no claims that could be debatable among jurists of reason, Hayes 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 Hayes' Motion for Certificate of Appealability [#28] is DENIED.

ENTERED this 19th day of September, 2006.


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