Free USCA Order Terminating Appeal - District Court of Delaware - Delaware

Case 1:06-cv-00058-HB

Document 54

Filed 07/29/2008

Page 1 of 1

BLD-248 July 10, 2008 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT C.A. No. 08-2282 THOMAS J. CAPANO VS. WARDEN PERRY PHELPS, ET AL. (D. DEL. CIV. NO. 06-CV-00058) Present: MCKEE, RENDELL and SMITH, Circuit Judges Submitted are: (1) (2) Appellant's request for a certificate of appealability under 28 U.S.C.§ 2253(c)(1); and Appellant's motion for enlargement of page limitation in the above-captioned case. Respectfully, Clerk MMW/KGL/crg ORDER Capano's motion to waive the page limitations for filing an application for a certificate of appealability is granted. His request for a certificate of appealability is denied. For the reasons stated by the District Court, Capano has not made a substantial showing of the denial of a constitutional right as a result of the Delaware state court's decision not to instruct the jury on lesser-included offenses to first degree murder. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). The decision that lesser-included offense instructions were not required because they lacked an evidentiary basis in the record was not contrary to, or an unreasonable application of, the Supreme Court's precedent in Beck v. Alabama, 447 U.S. 625 (1980), and its progeny. By the Court, /s/ D. Brooks Smith Circuit Judge Dated: July 29, 2008 tyw/crg/cc: Joseph M. Bernstein, Esq. Elizabeth R. McFarlan, Esq.

A True Copy :

Marcia M . Waldron, Clerk