Smith 267009 v. Schiebner ( 2021 )

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______ DERRICK LEE SMITH, Petitioner, Case No. 1:21-cv-921 v. Honorable Paul L. Maloney JAMES SCHIEBNER, Respondent. ____________________________/ ORDER REGARDING CERTIFICATE OF APPEALABILITY This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Under the Antiterrorism and Effective Death Penalty Act of 1996, a petitioner may not appeal in a habeas case unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1). Rule 22 of the Federal Rules of Appellate Procedure extends to district judges the authority to issue a certificate of appealability. Fed. R. App. P. 22(b). See Lyons v. Ohio Adult Parole Auth., 105 F.3d 1063, 1073 (6th Cir. 1997). Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should issue if a petitioner has demonstrated a “substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The standard a petitioner must meet depends on whether the issues raised in the petition were denied on the merits or on procedural grounds. This Court denied Petitioner’s application on the procedural grounds of failure to correct the deficiency in his petition by filing an amended petition on the approved form. “When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a [certificate of appealability] should issue when the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Both showings must be made to warrant the grant of a certificate. Id. The Court finds that reasonable jurists could not debate that this court correctly dismissed Petitioner’s claims on procedural grounds. “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further.” Id. Therefore, the Court denies Petitioner a certificate of appealability. Accordingly, IT IS ORDERED that a certificate of appealability is DENIED. Dated: December 22, 2021 /s/ Paul L. Maloney Paul L. Maloney United States District Judge