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El-Bey v. Johnson

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS


January 29, 2010

AARON DOYLE PINKSTON EL-BEY, PETITIONER,
v.
YOLANDA JOHNSON, 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 Aaron Doyle Pinkston's ("Pinkston") Notice of Appeal from the denial of his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, which the Court construes as a request for Certificate of Appealability. 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.

The Court notes that this appeal would appear to be futile, as his § 2254 petition was both successive and also appeared to be fatally untimely. Petitioner admitted in his petition that he previously sought federal relief in 1986, and he has offered nothing to show that the denial of his petition was not on the merits. More than thirteen years of time that does not appear to have been tolled by the filing of a proper post-conviction petition elapsed between the time his second post-conviction petition was denied as untimely in October 1992 and the filing of his Motion for New Trial in 2006. Pinkston has not introduced any evidence that would provide for the tolling of this extended period of time. As a result, he has presented no claims that could be debatable among jurists of reason and therefore 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 Pinkston's Petition for Issuance of a Certificate of Appealability [#11] is DENIED.

20100129

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