IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

CLARENCE WATERS

PETITIONER

A c: 3b

VS. (CASE NO: 2: 06-CV-0650-MEF

... . ..,--

KENNETH JONES, WARDEN

et al (

RESPONDENTS (

CERTIFICATE OF APPEALABILITY

COMES NOW THE ABOVE STYLED PETITIONER "CLARENCE WATERS t ' AND FILES

THIS HIS "CERTIFICATE OF APPEALABILITY" PURSUANT TO 28 USC 2253 (c)

AND IN SUPPORT OFSAME THIS PETITIONER WILL SHOW UNTOTHIS HONORABLE

COURT THE FOLLOWING TO WIT

1. ON APRIL 3, 2008 THE HONORABLE SUSAN RUSS WALKER UNITED STATES

MAGISTRATE JUDGE FOR THE MIDDLE DISTRICT OF LABAMA ENTERED IT'S

"RECOMMENDATION OF THE MAGISTRATE JUDGE" IN WHICH SHE DECLINED TO

GRANT THE PETITIONERS PETITION FOR WRIT OF HABEAS CORPUS ON TWO (2)

I S SUES 1) ADJUDICATION OF INDICTMENT CLAIM BYTHE STATE COURT

THIS COURT CONTENDS THAT A HABEAS PETITION WHOSE CLAIM WAS ADJUDICATED ON THE MERITS IN THE STATE COURT IS NOT ENTITLED TO RELIEF IN

FEDERAL COURT UNLESS HE MEETS THE REQUIREMENTS OF 28 USC 2254 (d)

(1) RESULTED INA DECISION THAT WAS CONTRARY TO, OR INVOLVED AN

UNREASONABLE APPLICATION OF CLEARLY ESTABLISHED FEDERAL LAW, AS

DETERMINED BY THE SUPREME COURT OF THE UNITED STATES OR (2)

RESULTED IN A DECISION THAT WAS BASED ON AN UNREASONABLE DETERMINATION OF THE FACTS INLIGHT OF THE EVIDENCE PRESENTED IN THE STATE

COURT PROCEEDINGS

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THE PETITIONER ARGUES THAT IT IS HIS POSITION THAT THE STATE

COURT BASED IT"S DECISION ON AN UNREASONABLE DETERMINATION OF THE

FACTS IN LIGHT OF THE EVIDENCE PRESENTED IN THE STATE COURT PROCEEDINGS 28 USC 2254 (d) (2)

2. SENTENCE ENHANCEMENT CLAIM-VIOLATION OF STATE LAW

THE PETITIONER ARGUES THAT THIS HONORABLE COURT CONTENDS THAT THG

THIS CONTENTION BY THE PETITIONER DOES NOT PRESENT A CLAIM UPON

WHICH FEDERAL RELIEF CAN BE GRANTED AS THIS CLAIM INVOLVES THE

STATE COURTS APPLICATION OF STATE LAW, AND A FEDERAL COURT HAS NO

AUTHORITY TO RE-EXAMINE STATE COURT DETERMINATIONS OF QUESDTIONS

OF STATE LAW.

3. DUE PROCESS OF LAW

THE PETITIONER ARGUES THAT CONTRARY TO THIS COURTS RESOLUTION

OF THIS CLAIM,BY THE STATE OF ALABAMA, ENHENCEMENT OF THE

PETITIONERS SENTENCE PURSUANT TO "TITLE 13A-5-9 (c) (2)" "CODE

OF ALABAMA (1975)" BY RELYING SOLELY UPON THE PRESENTENCE

INVESTIGATION REPORT WHICH LISTED SEVERAL PRIOR FELONY CONVICTION

WAS PROHIBITED UNDER STATE LAW EX PARTE COOPER 632 so 2d 1344

(ALA. 1994) AS SUCH RESULTED IN AN SENTENCE WHICH WAS NOT

AUTHORIZEDD BY LAW (" AS A TRIAL COURT HAS NO JURISDICTION TO

IMPOSE A SENTENCE WHICH IS NOT AUTHORIZED BYLAW") SEE THE

AUTHORITY OF JONES V. STATE 724 so2d 75 (ALA. CRIM. APP.

THE PETITIONER ARGUES FURTHER THAT, THERE IS NO NEED TO

REEXAMINE STATE COURT DETERMINATIONS ON QUESTIONS OF STATE LAW

AS CLEARLY THIS CLAIM DOES NOT INVOLVE A STATE COURTS APPLICATION OF STATE LAW, BECAUSE THE ALABAMA SUPREME COURTS DECISION

IN EXPARTE COOPER 632 so 2d 1344 (ALA. 1994) IS BINDING ON THIS

Case 2:06-cv-00650-MEF-SRW Document 46 Filed 05/28/2008 Page 2 of 4
HONORABLE COURT

THE PETITIONER ARGUES FURTHER THAT, THE DENIAL OF THESE TWO

(2) CLAIMS BY THE STATE COURTS RESULTED IN A DECISION THAT WAS

BASED ON AN UNREASONBALE DETERMINATION OIF THE FACTS IN LIGHT

OF THE EVIDENCE PRESENTED IN THE STATE COURT PROCEEDINGS

28 USC 2254 (d) (2)

THE PETITIONER ARGUES THAT, CLEARLY HIS DUE PROCESS WHICH IS

GUARANTEED BY THE 14THAMENDMENT TO THE UNITED STATES CONSTITUTION

HAS BEEN VIOLATED BY THE PETITIONER BEING SUBJECTED TO A SENTENCE

WHICH IS CLEARLY NOT AUTHORIZED BY LAW, AND SUCH A CLAIM IS

CLEARLY DEBATEABLE AMONG JURISTS.

4. SLACK V. McDANIEL 529 US 473 484 120 s ct 1595 1604

146 LED 2d 542 (2000)

THE UNITED STATES SUPREME COURT HELD THAT WHERE THE DISTRICT

COURT HAS DENIED A HABEAS PETITION, ON PROCEDURAL GROUNDS THE

PETITIONER MUST SHOW THAT JURISTS OF REASON WOULD FIND IT

DEBATABLE WHETHER 1) THE DISTRICYT COURT WAS CORRECT IN IT"S

PROCEDURAL RULING AND 2) THE PETITION STATES A VALID CLAIM

OF THE DENIAL OF A CONSTITUTIONAL RIGHT.

THE PETITIONER ARGUES THAT WHEN AS HERE A DISTRICT COURT HAS

REJECTED A CONSTITUTIONAL CLAIM, ON THE MERITS WITHOUT REACHING

THE UNDERLYING CONSTITUTIONAL CLAIM,. A CERTIFICATE OF APPEALABIL

SHOULD BE ISSUED IN THAT CASE, THE PETITIONER THROUGH ALL OF HIS

FORMAL PLEADINMGS HAS SHOWN THAT JURISTS OF REASON WOULD FIND

THE CLAIM DEBATEABLE AMONG TEHM, AND THE PETITIONER HAS CLEARLY

SHOWN A VALID CLAIM OF A DENIAL OF A CONSTITUTIONAL RIGHT.

Case 2:06-cv-00650-MEF-SRW Document 46 Filed 05/28/2008 Page 3 of 4
THE PETITIONER ARGUES THAT, HE CLEARLY HAS SHOWN THAT HE HAS

MADE A SUBSTANTIAL SHOWING OF A DENIAL OF A CONSTITUTIONAL RIGHT

A DEMOSTRATION THAT UNDER BAREWOOT V. ESTELLE 463 US at 894

77 LED 2d XXX 1090 103 s ct 3383 INCLUDES SHOWING THAT

REASONABLE JURISTS COULD DEBATE WHETHER (OR NOT FOR THAT MATTER

WOULD AGREE THAT) THE PETITIONERS PETITION FOR WRIT OF HABEAS

CORPUS PETITION SHOULD HAVE BEEN RESOLVED IN A DIFFERENT MANER

OR THAT THE ISSUES PRESENTED WERE ADEQUATE TO DESERVE ENCOURAGEMENT TO PROCEED FURTHER

WHEREFORE PREMISES CONSIDERED PETITIONER MOVES THIS HONORABLE

COURT TO ENTER A ORDER GRANTING THE PETITIONERS "CERTIFICATE OF

APPEALABILITY"

DONE THIS THEY OF MAY 2008

RESPECTFULLY SUBMITTED

C RENCE WATERS

AIS# 132116

WILLIAM E. DONALDSON CORRECTIONAL FACILITY

100 WARRIOR LANE

BESSEMER, ALABAMA 35023-7299

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