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Schoffner v. Hulick

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


September 18, 2007

CLEODIOUS SCHOFFNER, JR., PETITIONER,
v.
DON HULICK, RESPONDENT.

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

MEMORANDUM and ORDER

On August 9, 2007, the Court dismissed with prejudice Schoffner's 28 U.S.C. § 2254 petition as time-barred (Doc. 19). The next day, the Clerk of the Court entered judgment reflecting the same (Doc. 20). On September 10, 2007, Schoffner filed his notice of appeal (Doc. 22). Now before the Court is Schoffner's motion for certificate of appealability (Doc. 21).

Under 28 U.S.C. § 2253, a habeas petitioner does not have the absolute right to appeal a district court's denial of his habeas petition; instead, he must first request a certificate of appealability. See Miller-El v. Cockrell, 537 U.S. 322, 335, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003). "The purpose of requiring a certificate of appealability is to conserve judicial resources by screening out clearly unmeritorious appeals." Buie v. McAdory, 322 F.3d 980, 981 (7th Cir. 2003). A habeas petitioner is entitled to a certificate of appealability only if he can make a substantial showing of the denial of a constitutional right. Miller-El, 537 U.S. at 336; Cosby v. Sigler, 435 F.3d 702, 708 (7th Cir. 2006). Under this standard, Schoffner must demonstrate that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. " Miller-El, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000)). While a petitioner seeking a COA need not demonstrate that he will prevail on appeal, he "must prove something more than the absence of frivolity or the existence of mere good faith on his or her part." Miller-El, 537 U.S. at 338 (internal quotation marks and citation omitted).

Upon view of the record, the Court finds that pursuant to the § 102 of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2253, the Court certifies that Schoffner has not made a substantial showing in his motion under 28 U.S.C. § 2254 of the denial of a constitutional right, and therefore, DECLINES to issue a certificate of appealability. Accordingly, the Court DENIES Schoffner's motion for certificate of appealability (Doc. 21).

IT IS SO ORDERED.

David R Herndon United States District Judge

20070918

© 1992-2007 VersusLaw Inc.



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