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Herron v. Norris

July 11, 2007

JERRY LOUIS HERRON, JR. PETITIONER
v.
LARRY NORRIS, DIRECTOR OF THE ARKANSAS DEPARTMENT OF CORRECTION RESPONDENT



ORDER

Petitioner Jerry Louis Herron ("Herron") has filed the pending motion for a certificate of appealability pursuant to 28 U.S.C. 2253(c). See Document15.*fn1 For the reason that follows, the motion is denied.

In Slack v. McDaniel, 529 U.S. 473, 484 (2000), the United States Supreme Court articulated the following standard for reviewing a request for a certificate of appealability:

Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy [section] 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. The issue becomes somewhat more complicated where, as here, the district court dismisses the petition based on procedural grounds. We hold as follows: 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, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.

See also Khaimov v. Christ, 2002 WL 1677677 (8th Cir. July 25, 2002).*fn2

The record reflects that Herron advanced two claims in support of his petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. The Court found, however, that he filed his petition outside the one year limitations period established by 28 U.S.C. 2244(d). As a result, his petition was denied and dismissed.

The Court has thoroughly reviewed the motion at bar. Herron has not demonstrated that jurists of reason would find it debatable whether the petition stated a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the Court was correct in its procedural ruling. The Court therefore finds that Herron's motion for a certificate of appealability should be, and is, denied.

IT IS SO ORDERED this __11___ day of ...


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