Gregory Rodriquez, Plaintiff-appellant, v. Charles Scully and Robert Abrams, Defendants-appellees, 905 F.2d 24 (2d Cir. 1990)

This appeal is from a judgment of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, denying Gregory Rodriquez's petition of habeas corpus. The claims that Rodriquez asserted are meritless, as we pointed out in our summary order of affirmance, filed April 26, 1990. We write this per curiam opinion, however, to avoid any possible confusion regarding the analysis district courts should apply in deciding whether to issue a certificate of probable cause.

To obtain a certificate of probable cause, the petitioner must demonstrate both that the petition is not frivolous and that it presents some question deserving of appellate review. Alexander v. Harris, 595 F.2d 87, 91 (2d Cir. 1979) (per curiam); Dory v. Commissioner of Corrections of State of New York, 865 F.2d 44, 46 (2d Cir. 1989) (per curiam). Merely asserting a non-frivolous claim is insufficient to obtain a certificate, since the petitioner must in addition demonstrate that his non-frivolous petition presents some question deserving of appellate review. Unless the petitioner also satisfies this second requirement, a district court should not issue a certificate.

In Dory, the district court had issued a certificate sua sponte after dismissing the complaint as frivolous. Dory, 865 F.2d at 46. We held that a "summary dismissal followed by the grant of a certificate of probable cause is intrinsically contradictory" and for this reason ordered the district court to allow the respondent to answer the petition. Id. Nothing in that opinion should be read as modifying the two requirements that we articulated in Alexander.

Affirmed.