Nicholson v. Kelley et al

Filing 17

ORDER approving and adopting in their entirety 8 proposed findings and recommendations; dismissing this habeas corpus action with prejudice; and declining to issue a certificate of appealability.Signed by Judge Susan Webber Wright on 9/29/2016. (mef)

IN THE UNITES STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
KENDALL C. NICHOLSON

v.

PETITIONER

CASE NO. 5:16-cv-00137-SWW-JTK

WENDY KELLEY, Director
Arkansas Department of Correction, and
GAYLON LAY, Warden, Cummins Unit

RESPONDENTS

ORDER
The Court has received proposed findings and recommendations from United States
Magistrate Judge Jerome T. Kearney.

After careful review of the findings and

recommendations and the timely objections thereto, as well as a de novo review of the
record, the Court concludes that the findings and recommendations should be, and are
hereby, approved and adopted as this Court’s findings in all respects in their entirety.
Accordingly, the Court dismisses this habeas corpus action with prejudice. The Court will
enter judgment accordingly.
Because petitioner has not made a substantial showing of the denial of a constitutional
right, the Court declines to issue a certificate of appealability.1

1

A certificate of appealability certifies that the applicant has made a substantial showing of the
denial of a constitutional right, that is, a showing that the issues are debatable among reasonable jurists, a
court could resolve the issues differently, or the issues deserve further proceedings. See, e.g., Carson v.
Director of the Iowa Dept. of Correctional Services, 150 F.3d 973, 975 (8th Cir. 1998). With respect to
claims that are procedurally barred, the Eighth Circuit has summarized the factors to consider when
determining whether a certificate of appealability should issue when a habeas claim is denied on
procedural grounds: “(1) if the claim is clearly procedurally defaulted, the certificate should not be issued;
(2) even if the procedural default is not clear, if there is no merit to the substantive constitutional claims,

SO ORDERED this 29th day of September, 2016.
/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

the certificate should not be issued; but, (3) if the procedural default is not clear and the substantive
constitutional claims are debatable among jurists of reason, the certificate should be granted.” Khaimov v.
Crist, 297 F.3d 783, 786 (8th Cir. 2002) (citing Slack v. McDaniel, 529 U.S. 473, 484-85 (2000)).