Charles Albanese v. Howard Peters, III

67 F.3d 301, 1995 U.S. App. LEXIS 32307, 1995 WL 564667

Opinion

67 F.3d 301

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
Charles ALBANESE, Petitioner-Appellant,
v.
Howard PETERS, III, et al., Respondents-Appellees.

No. 95-3208.

United States Court of Appeals, Seventh Circuit.

Submitted Sept. 18, 1995.
Decided Sept. 19, 1995.

Before CUMMINGS, BAUER and ROVNER, Circuit Judges.

ORDER

Petitioner's "REQUEST FOR ISSUANCE OF A CERTIFICATE OF PROBABLE CAUSE", respondents' "RESPONSE IN OPPOSITION TO CERTIFICATE OF PROBABLE CAUSE", Petitioner's "MOTION FOR STAY OF EXECUTION", and respondents' "OPPOSITION TO APPLICATION FOR STAY OF EXECUTION" are before the court.

Charles Albanese is scheduled to be executed by the State of Illinois on September 20, 1995. Petitioner's first federal petition for a writ of habeas corpus was denied; that denial was affirmed by this court and certiorari denied by the U.S. Supreme Court. Albanese v. McGinnis, 823 F.Supp. 521 (N.D.Ill.1993), aff'd, Albanese v. Peters, 1994 U.S.App. (7th Cir.1994), cert. denied, 115 S.Ct. 1114 (1995).

Albanese filed a successive petition for a writ of habeas corpus in the district court on September 12, 1995. On September 18, 1995 the district court dismissed the successive petition for habeas review, finding that it fails to assert new grounds for review and otherwise constitutes an abuse of the writ. Finding no substantial grounds upon which relief could be granted, the district court denied a stay of execution and declined to issue a certificate of probable cause.

We have reviewed the final order of the district court, the record on appeal, and the motions papers. For the reasons stated in the district court's September 18, 1995 memorandum and order, we find no substantial showing of the denial of a federal constitutional right. Barefoot v. Estelle, 463 U.S. 880, 993 (1983). Accordingly, we DENY a certificate of probable cause and DENY the stay of execution. The mandate shall issue immediately.