Volpicelli v. Palmer

Opinion

5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 * * * 8 FERRILL JOSEPH VOLPICELLI, Case No. 3:10-cv-00005-RCJ-CLB 9 Petitioner, ORDER 10 v.

11 JACK PALMER, et al.,

12 Respondents.

13 14 On April 30, 2015, this court entered a final order and judgment denying Ferrill 15 Joseph Volpicelli’s petition for writ of habeas corpus on the merits (ECF No. 58). On 16 appeal, the United States Court of Appeals for the Ninth Circuit denied Volpicelli’s 17 request for a certificate of appealability and the United States Supreme Court denied his 18 petition for writ of certiorari (ECF Nos. 62, 64). On April 5, 2021, Volpicelli filed a motion 19 for relief from judgment under Fed. R. Civ. P. 60(b), which this court denied (ECF Nos. 20 66, 84). On January 19, 2022, Volpicelli filed a motion to alter or amend judgment 21 pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, which this court denied 22 (ECF No. 85). 23 Volpicelli filed a notice of appeal (ECF No. 90). The Ninth Circuit remanded the 24 case to this court for the limited purpose of granting or denying a certificate of 25 appealability (ECF No. 92). This court’s order denying the motion to alter or amend 26 judgment is a final order adverse to the petitioner. As such, Rule 11 of the Rules 27 Governing Section 2254 Cases requires this court to issue or deny a certificate of 28 appealability (COA). Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when 1 || the petitioner "has made a substantial showing of the denial of a constitutional right.” 2 || With respect to claims rejected on the merits, a petitioner "must demonstrate that 3 || reasonable jurists would find the district court's assessment of the constitutional claims 4 || debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. 5 || Estelle, 463 U.S. 880, 893 & n.4 (1983)). For procedural rulings, a COA will issue only if 6 || reasonable jurists could debate (1) whether the petition states a valid claim of the denial 7 || of a constitutional right and (2) whether the court's procedural ruling was correct. /d. 8 || Having reviewed its determinations and rulings in adjudicating Volpicelli’s motion, the 9 || court finds that none of those rulings meets the S/ack standard. The court therefore 10 || declines to issue a certificate of appealability for its resolution of Volpicelli’s motion. 11 IT IS THEREFORE ORDERED that a certificate of appealability is denied. 12 13 April 19, 2022. 14 é Cam OBERY-. JONES 15 UNITEDISTATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28