Fernandez v. NHSP Warden

2008 DNH 150

Opinion

Fernandez v. NHSP Warden 06-CV-281-SM 08/20/08 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Lucio E. Fernandez

v. Civil No. 06-CV-281-SM Opinion No. 2008 DNH 150 Richard M. Gerry. Warden. New Hampshire State Prison

O R D E R

Petitioner requests a certificate of appealability ("COA"),

permitting him to appeal this court's denial of his petition for

habeas corpus relief on the merits. See 28 U.S.C. § 2253(c).

A COA may be issued only where a petitioner has made a

"substantial showing of the denial of a constitutional right."

Id. When a "district court has rejected the [petitioner's]

constitutional claims on the merits, the showing required to

satisfy § 2253(c) is straightforward: The petitioner must

demonstrate that reasonable jurists would find the district

court's assessment of the constitutional claims debatable or

wrong." Miller-El v. Cockrell. 537 U.S. 322, 338 (2003), quoting

Barefoot v. Estelle. 463 U.S. 880, 893, n. 4 (1983); see also

Slack v. McDaniel. 529 U.S. 473, 484 (2000).

In his motion for a COA petitioner merely reiterates the

claims and arguments previously offered on the merits and does

not address the applicable standard, nor does he attempt to show 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.'" I_d., at 336.

I find that petitioner has not met his burden, and decline

to issue a COA. The court's opinion directly addresses each of

petitioner's claims in light of the applicable standard (either

deferential or de novo) and nothing in petitioner's motion

suggests either that one or more of his claims should have been

resolved differently, or that reasonable jurists could debate

that question, or that the claims presented were adequate to

deserve encouragement to proceed further. Still, petitioner may

seek such a certificate directly from the United States Court of

Appeals for the First Circuit.

Conclusion

The motion for a COA (document no. 17) is denied.

SO ORDERED.

( McAuliffe rChief Judge August 20, 2 00 8

cc: Benjamin J. Agati, Esq. Paul J. Haley, Esq. Stephen D. Fuller, Esq., NHAG John Vinson, Esq., NHSP