IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
October 25, 2012
MARKUS HUNTER, PETITIONER,
MARCUS HARDY, RESPONDENT.
The opinion of the court was delivered by: Herndon, Chief Judge:
MEMORANDUM & ORDER
On October 5, 2012, the Court granted respondent's motion to dismiss without prejudice (Doc. 10). Thus, pursuant to RULE 11 OF THE RULES GOVERNING SECTION 2254 CASES, the Court must consider whether it should grant petitioner a certificate of appealability. To obtain a certificate of appealability, a petitioner must make a substantial showing of the denial of a constitutional right by establishing "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." Slack v. McDaniel, 529 U.S. 473, 484 (2000). When the court dismisses a petition on procedural grounds, the determination of whether a certificate of appealability should issue has two components. Id. at 484--85. First, the petitioner must show that reasonable jurists would find it debatable whether the court was correct in its procedural ruling. Id. at 484. Next, the petitioner must show that reasonable jurists would find it debatable whether the petition states a valid claim for denial of a constitutional right. Id. To obtain a certificate of appealability, the petitioner must satisfy both components. Id. at 485.
The Court dismissed petitioner's petition, as he did not respond to respondent's motion to dismiss or otherwise demonstrate that he had received permission from the Seventh Circuit to file his successive Section 2254 petition. The Court alternatively dismissed petitioner's claims, as he had not paid his filing. Although the Court has since acknowledged petitioner's late payment (Doc.
12), the alternative reasoning for petitioner's dismissal stands. Again, the Court reiterates that petitioner did not timely respond to respondent's arguments, nor has he demonstrated that he received permission to file a successive petition. Petitioner has not established that jurists of reason would debate the correctness of this procedural ruling. Accordingly, the Court DENIES petitioner a certificate of appealability. Digitally signed by
IT IS SO ORDERED. David R. Herndon
Chief Judge United States District Judge
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