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Rogowski v. Plescia

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


December 21, 2007

THOMAS M. ROGOWSKI, PETITIONER,
v.
JAMES PLESCIA, SUPERINTENDENT, RESPONDENT.

The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge

ORDER

By prior Decision and Order of this Court, the petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 filed by petitioner Thomas Rogowski was denied as time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA").*fn1 Dkt. No. 7. Following the denial of petitioner's motion for reconsideration of that Decision and Order (Dkt. No. 10), petitioner appealed the dismissal of his petition to the United States Court of Appeals for the Second Circuit. Dkt. No. 11.

Presently before the Court is petitioner's request for a certificate of appealability ("COA"). Dkt. No. 11.*fn2 Appeals to the Court of Appeals in habeas corpus proceedings are governed by 28 U.S.C. § 2253, which provides in relevant part that:

(c) (1) 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.*fn3

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

After reviewing the file, and for the reasons set forth in the Court's prior Decisions in this action, the Court finds that petitioner has failed to make the showing required for issuance of a COA.

WHEREFORE, it is hereby

ORDERED that petitioner's application for a certificate of appealability (Dkt. No. 11) is denied, and it is further

ORDERED that the Clerk serve a copy of this Order on petitioner.

IT IS SO ORDERED.


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