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McCullough v. Norris

May 23, 2007

WALTER MCCULLOUGH PETITIONER
v.
LARRY NORRIS, DIRECTOR OF THE ARKANSAS DEPARTMENT OF CORRECTION RESPONDENT



The opinion of the court was delivered by: Susan Webber Wright United States District Judge

ORDER

On May 7, 2007, the Court dismissed without prejudice this habeas action filed pursuant to 28 U.S.C. § 2254 (docket entries #26, #27). Now before the Court is Petitioner's motion for issuance of a certificate of appealability and notice of appeal (docket entry #30). For the reasons stated below, the motion for a certificate of appealability will be denied.

Petitioner cannot appeal the dismissal of his habeas petition unless a Circuit Justice or a Circuit or District Judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A); Fed. R. App. P. 22(b)(1). A certificate of appealability certifies that the applicant has made a substantial showing of the denial of a constitutional right, that is, a showing that the issues are debatable among reasonable jurists, a court could resolve the issues differently, or the issues deserve further proceedings. See Carson v. Director of the Iowa Dept. of Correctional Services, 150 F.3d 973, 975 (8th Cir. 1998), cert. denied, 525 U.S. 1079 (1999).

In this case, the Court dismissed Petitioner's claims without prejudice on grounds that his petition contains both exhausted and unexhausted claims. As fully explained in Magistrate Young's recommended disposition (docket entry #22), adopted by this Court, it is clear that Petitioner has filed a mixed petition, and no circumstances exist that would warrant a stay while he exhausts his claims in state court. Accordingly, the Court finds that Petitioner has failed to show that jurists of reason would find it debatable whether the Court was correct in its ruling, and the Court declines to grant Petitioner a certificate of appealability. Petitioner's motion (docket entry #30) is hereby DENIED.

IT IS SO ORDERED THIS 23RD DAY OF MAY, 2007.

20070523

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