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Emrick v. Wolfe

January 16, 2007

RUSSELL EMRICK, SR., PETITIONER,
v.
JEFFREY A. WOLFE, WARDEN, RESPONDENT.



The opinion of the court was delivered by: Judge Holschuh

MAGISTRATE JUDGE KING

OPINION AND ORDER

On December 5, 2006, final judgment was entered conditionally granting the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254 on petitioner's claim that his sentence violated Blakely v. Washington, 542 U.S. 296 (2004), but dismissing the remainder of petitioner's claims. Doc. No. 14. This matter is before the Court on petitioner's December 27, 2006, notice of appeal, Doc. No. 22, which this Court construes as a request for a certificate of appealability, his motion for bail, Doc. No. 20, and respondent's memorandum in opposition, Doc. No. 21. For the reasons that follow, petitioner's request for a certificate of appealability, Doc. No. 22 is DENIED; his request for release on bail, Doc. No. 20, is also DENIED.

I. REQUEST FOR A CERTIFICATE OF APPEALABILITY

In this habeas corpus petition, petitioner asserts:

1. Conviction obtained by use of coerced confession and by violation of privilege against self incrimination.

My confession was coerced with the fact that my then pregnant fiancé was being charged with the crime, I was in jail at the time the meth lab was discovered, the detectives said I confessed to such crime, which I did not, and the two people who were running the lab were at the crime scene with possible fingerprints, etc., there.

2. Conviction obtained by failure of the prosecutor to disclose evidence favorable to the defendant.

3. Denial of effective assistance of counsel and denial of my right to appeal.

4. Conviction/sentence in violation of Double Jeopardy, multi-punishment.

Petitioner requests a certificate of appealabilty on all of his claims, with the exception of his claim that his sentence violated Blakely, supra. On December 5, 2006, claim one was dismissed as waived by virtue of petitioner's guilty plea; claims two and three were dismissed as procedurally defaulted or without merit; the double jeopardy claim raised in claim four was dismissed as without merit.

Where the Court dismisses a claim on procedural grounds, 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.

Slack v. McDaniel, 120 S.Ct. 1595 (2000). Thus, there are two components to determining whether a certificate of appealability should issue when a claim is dismissed on procedural grounds: "one directed at the underlying constitutional claims and one directed at the district court's procedural holding." The court may first "resolve the issue whose answer is more apparent from the record and arguments." Id.

When a claim has been denied on the merits, a certificate of appealability may issue only if the petitioner "has made a substantial showing of the denial of a constitutional right." 28 U.S.C. ยง2253(c)(2). This standard is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, supra. To make a substantial showing of the denial of a constitutional right, a petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different ...


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