IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
April 20, 2009
MARCUS BRADLEY, PETITIONER,
DONALD GAETZ, RESPONDENT.
The opinion of the court was delivered by: Herndon, Chief Judge
MEMORANDUM and ORDER
On March 13, 2009, the Court denied and dismissed with prejudice Bradley's 28 U.S.C. § 2254 petition (Doc. 18). On March 16, 2009, the Clerk of the Court entered judgment reflecting the same (Doc. 19).*fn1 Now before the Court is Bradley's April 17, 2009, motion for certificate of appealability (Doc. 20). As a preliminary matter, Bradley's motion clearly evinces an intent to appeal the Court's denial and dismissal of his petition and satisfies the requirement of a notice of appeal under Federal Rulee of Appellate Procedure 3(c)(1). Thus, the Court CONSTRUES the motion for certificate of appealability to contain a notice of appeal filed on April 17, 2009 and DIRECTS the Clerk of the Court to docket it as so.
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, Bradley 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 and pursuant to the § 102 of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2253, the Court certifies that Bradley 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 Bradley's motion for certificate of appealability (Doc. 20).
IT IS SO ORDERED.
David R Herndon Chief Judge United States District Court