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Camacho v. Smith

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


November 5, 2007

ESTEVAN CAMACHO, PETITIONER, -
v.
JOSEPH T. SMITH, SUPERINTENDENT, SHAWUNGUNK CORR. FACILITY, RESPONDENT.

The opinion of the court was delivered by: Lawrence E. Kahn, U.S. District Judge

ORDER Estevan Camacho ("Camacho" or "Petitioner") filed a Petition for a Writ of Habeas Corpus with the Court which was recommended denied and dismissed by the Report-Recommendation of Magistrate Judge Gustave J. DiBianco. Docket No. 18. That Report-Recommendation was approved, and the Petition dismissed, by Decision and Order of this Court filed September 26, 2007. Docket No. 19. Camacho has appealed that dismissal to the Second Circuit and now seeks a Certificate of Appealability ("COA").*fn1 Docket No. 22.

28 U.S.C. § 2253(c)(1) provides in relevant part that: Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from --

(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or

(B) the final order in a proceeding under section 2255.*fn2

A COA may only be issued "if the applicant has made a substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(2).

After reviewing the relevant portions of the file in this action, and for the reasons set forth in the September 5, 2007 Report and Recommendation, and this Court's September 26, 2007 Order, the Court finds that Camacho has failed to make such a showing herein. Therefore, the Court denies his request.

WHEREFORE, it is hereby

ORDERED, that Petitioner's Application for a Certificate of Appealability (Docket No. 22) is denied, and it is further

ORDERED, that the Clerk of the Court serve a copy of this Order upon the parties in accordance with the Local Rules.

IT IS SO ORDERED.


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