Kelly v. Fayram

Filing 17

ORDER re 16 USCA Order re 9 Notice of Appeal filed by Michael Kelly. This matter is before the court upon remand from the Eighth Circuit Court of Appeals. Because there is no debatable question as to the resolution of this case, an appeal is not warranted. Accordingly, the court shall not grant a certificate of appealability. (See order text) Signed by Chief Judge Linda R Reade on 8/29/11. (Copy w/NEF to Plf; cc 8th Circuit Court of Appeals) (ksy)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION

MICHAEL KELLY,
Petitioner,

No. C10-0142-LRR

vs.
ORDER

JOHN FAYRAM,
Respondent.
____________________________

This matter is before the court upon remand from the Eighth Circuit Court of
Appeals. The matter has been remanded in light of Tiedeman v. Benson, 122 F.3d 518,
522 (8th Cir. 1997).
In a habeas proceeding before a district judge, the final order shall be subject to
review, on appeal, by the court of appeals for the circuit in which the proceeding is held.
See 28 U.S.C. § 2253(a).

Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals. See 28 U.S.C. §
2253(c)(1)(A). A district court possesses the authority to issue certificates of appealability
under 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). See Tiedeman v. Benson, 122 F.3d
518, 522 (8th Cir. 1997). Under 28 U.S.C. § 2253(c)(2), a certificate of appealability
may only issue if a petitioner has made a substantial showing of the denial of a
constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S. Ct. 1029,
154 L. Ed. 2d 931 (2003); Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir.
2000); Carter v. Hopkins, 151 F.3d 872, 873-74 (8th Cir. 1998); Cox v. Norris, 133 F.3d
565, 569 (8th Cir. 1997); Tiedeman, 122 F.3d at 523. To make such a showing, the issues
must be debatable among reasonable jurists, a court could resolve the issues differently,
or the issues deserve further proceedings. Cox, 133 F.3d at 569 (citing Flieger v. Delo,

16 F.3d 878, 882-83 (8th Cir. 1994)); see also Miller-El, 537 U.S. at 335-36 (reiterating
standard).
Courts reject constitutional claims either on the merits or on procedural grounds.
“‘[W]here a district court has rejected the constitutional claims on the merits, the showing
required to satisfy [28 U.S.C.] § 2253(c) is straightforward: the petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.’” Miller-El, 537 U.S. at 338 (quoting Slack v.
McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000)). When a
federal habeas petition is dismissed on procedural grounds without reaching the underlying
constitutional claim, “the [petitioner must show], at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.” See Slack, 529 U.S. at 484.
Having thoroughly reviewed the record in this case, the court finds that the
petitioner failed to make the requisite “substantial showing” with respect to the claims he
raised in his application pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(2); Fed.
R. App. P. 22(b). Because there is no debatable question as to the resolution of this case,
an appeal is not warranted. Accordingly, the court shall not grant a certificate of
appealability pursuant to 28 U.S.C. § 2253.
If the petitioner desires further review of his 28 U.S.C. § 2254 application, he may
request issuance of the certificate of appealability by a circuit judge of the Eighth Circuit

2

Court of Appeals in accordance with Tiedeman, 122 F.3d at 520-22.
IT IS SO ORDERED.
DATED this 29th day of August, 2011.

3