UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
January 2, 2008
GARRY MURRAY, PETITIONER,
TIMOTHY MURRAY, SUPERINTENDENT, RESPONDENT.
The opinion of the court was delivered by: Lawrence E. Kahn, U.S. District Judge
On January 9, 2004, Petitioner Garry Murray ("Murray" or "Petitioner") filed a petition for a writ of habeas corpus with the Court. Dkt. No. 1. On June 14, 2007, Magistrate Judge Randolph F. Treece filed a Report-Recommendation, recommending that the Petition be denied. Docket No. 40. The Report-Recommendation was approved, and the Petition Dismissed, by a Decision and Order of this Court filed September 11, 2007. Docket No. 44. Murray has appealed that dismissal to the Second Circuit and now seeks a Certificate of Appealability ("COA"). Docket No. 52.
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.*fn1
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 Court's Decision and Order and Magistrate Judge Treece's Report-Recommendation, the Court finds that Murray 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. 52) 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.