Gardner v. Norris

Filing 46

ORDER denying 43 Motion for Certificate of Appealability; denying 44 Motion for Leave to Appeal in forma pauperis; denying 45 Motion for Reconsideration re 40 Memorandum & Opinion, 41 Judgment. Signed by Magistrate Judge Beth Deere on 12/23/08. (dac)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION WALLACE A. GARDNER ADC #110784 v. C A S E NO.: 5:07CV0024 BD RESPONDENT PETITIONER

L A R R Y NORRIS Director, Arkansas Department of Correction ORDER

B y Memorandum Opinion and Order dated November 20, 2008, this Court denied P e titio n e r's application for a writ of habeas corpus under 28 U.S.C. § 2254. In his p e t itio n , Petitioner claimed: (1) violations of his equal protection and due process rights; (2 ) ineffective assistance of counsel; (3) unlawful arrest in violation of the Fourth A m e n d m e n t of the United States Constitution; and (4) improper admission of "false e v id e n c e" at trial. Petitioner also filed amended petitions adding a claim of ineffective a ss is ta n c e of appellate counsel and a claim that he was required to answer to charges that w e re not submitted to a grand jury and were not included in a grand jury indictment, in v io la tio n of the Arkansas Constitution. Pending are Petitioner's Motion for Certificate of Appealability (COA) (docket e n try #43), Motion for Leave to Appeal In Forma Pauperis (#44), and Motion for R e c o n s id e ra tio n (#45). The COA statute establishes procedural rules requiring a threshold inquiry as to w h e th e r the circuit court of appeals may entertain an appeal. Slack v. McDaniel, 529 U.S.

4 7 3 , 482, 120 S.Ct. 1595, 1603 (2000). Title 28 U.S.C. § 2253 limits the right of appeal to cases in which "a circuit justice or judge issues a certificate of appealability . . . in a h a b e a s corpus proceeding in which the detention arises out of process issued by a State co u rt[.]" 28 U.S.C. § 2253(c)(1)(A). T h is Court may issue a COA, but only if Petitioner has made a "substantial s h o w in g of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Court of A p p e a ls for the Eighth Circuit held this to be a "modest standard" in Randolph v. Kemna, 2 7 6 F.3d 401, 403 n. 1 (8th Cir. 2002) (quoting Charles v. Hickman, 228 F.3d 981, 982 n. 1 (9th Cir. 2000)). The United States Supreme Court has interpreted the "substantial s h o w in g " requirement of § 2253(c) as follows: W h e r e a district court has rejected the constitutional claims on the merits, th e showing required to satisfy § 2253(c) is straightforward: The petitioner m u s t demonstrate that reasonable jurists would find the district court's a s s e s s m e n t of the constitutional claims debatable or wrong. . . . S la c k , 529 U.S. at 484. In his Motion for COA and Motion for Reconsideration, Petitioner claims that this C o u rt should not have dismissed his claims as procedurally defaulted because he can e sta b lis h cause for his default and actual prejudice.1 See Coleman v. Thompson, 501 U.S. 7 2 2 , 750, 111 S.Ct. 2546, 2565 (1991). As cause, Petitioner claims he mailed his Rule 37

The only claim Petitioner raised in his petition that this Court found was not p ro c e d u ra lly defaulted was his sufficiency of the evidence claim. See Memorandum O p in io n and Order (#40) at p. 7. 2

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p e titio n before the time for filing had expired, but the employees of the mail room at the A rk a n sa s Department of Correction's Varner Unit delayed mailing his petition or the P u la sk i County Circuit Clerk delayed filing it. (#45 at pp. 1-3) T h e problem with Petitioner's argument is that he did not appeal the trial court's d ism iss a l of his Rule 37 petition as untimely. If Petitioner had appealed the denial of his p e titio n , he might have had a more legitimate argument for cause and prejudice. Under thes e circumstances, however, reasonable jurists would not debate whether the Court p ro p e rly denied Petitioner's request for habeas corpus relief. A c c o rd in g ly, Petitioner's Motion for Certificate of Appealability (#43), Motion for L e a v e to Appeal In Forma Pauperis (#44), and Motion for Reconsideration (#45) must b e , and hereby are, DENIED. IT IS SO ORDERED, this 23rd day of December, 2008.

___________________________________ U N IT E D STATES MAGISTRATE JUDGE

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