Jimenez v. Phillips, No. 1:2004cv10155 - Document 19 (S.D.N.Y. 2012)

Court Description: OPINION. A review of the relevant portions of the file and the reasons set forth in this Court's June 26, 2012, Opinion establish that the Petitioner has failed to make a substantial showing of the denial of a constitutional right. Therefore, th e Petitioner's request for a COA is denied. See Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). (Signed by Judge Robert W. Sweet on 11/7/2012) (lmb)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----x JOSE JIMENEZ, 04 Civ. 10155 Petitioner, OPINION -againstWILLIAM PHILLIPS, Respondent. -x Sweet, D.J. Petitioner Jose Jimenez ("Jimenez ll ) filed a petition seeking habeas corpus relief pursuant to 28 U.S.C. petition was denied on January 19, 2006. § 2254. (Dkt. No.7). The Jimenez later filed a motion to vacate the Court's judgment pursuant to Fed. R. Civ. P. 60(b), and that motion was denied on June 26, 2012. (Dkt. No. 16). On July 25, 2012, Petitioner submitted his request for a certificate of appealability ("COA If ) to the United States Court of Appeals for the Second Circuit. A COA may only issued "if (Dkt. No. 17). applicant has made a substantial showing of the denial of a constitutional right. 1f See 28 U.S.C. § 2253 (c) (2). Section 2253 (c) (1) of Title 28 of the United States Code provides, in pertinent part, that: [u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from (A) final order a habeas corpus proceeding in which the detention complained arises out of process issued by a State court; or final order in a proceeding under section 2255. (B) 28 U.S.C. § 2253 (c) (1). A review of the relevant portions of file and in this Court's June 26, 2012, Opinion reasons set Petitioner has failed to make a substantial establish that showing of the denial of a constitutional right. Petitioner's for a COA is denied. Therefore, See Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997), abrogated on other grounds United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). It is so ordered. 7, New York, NY November 2012 U.S.D.J. 1

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