UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS
October 29, 2010
ANTHONY GAY, PETITIONER,
YOLANDE JOHNSON, WARDEN, RESPONDENT.
The opinion of the court was delivered by: Michael M. Mihm United States District Judge
This matter is now before the Court on a Request for a Certificate of Appealability by Petitioner, Anthony Gay ("Gay"), 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.
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 petition was found to have been forfeited by the state courts and was further devoid of any factual basis for his claim regarding the denial of his ability to call witnesses on his behalf. He failed to identify the witnesses that he requested to call, give any indication of the content of their proposed testimony, or suggest how his requests were denied. Without such factual support, the claim was deemed insufficient and denied. His second claim, that he was denied due process because he was forced to wear shackles in front of the jury during trial, was also found to have been forfeited as a result of his failure to object either during trial or in a motion for new trial. As there was no showing of cause and prejudice or a fundamental miscarriage of justice, Gay's claims were barred from federal habeas review.
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.
ENTERED this 29th day of October, 2010.
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