Davis (ID 06598) v. Schmidt

Filing 21

MEMORANDUM AND ORDER granting 17 Motion for Leave to Appeal in forma pauperis. It is Further Ordered that a Certificate of Appealability is denied. Signed by District Judge Sam A. Crow on 8/2/2017. Mailed to pro se party Anthony Leroy Davis by regular mail. (ht)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ANTHONY LEROY DAVIS,
Petitioner,
v.

CASE NO. 17-3087-SAC

DAN SCHNURR,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed by a prisoner
in state custody. Following its screening of the petition, the court
liberally construed it as a petition filed under 28 U.S.C. § 2241.
On June 6, 2017, the Court dismissed the matter without
prejudice, and on July 25, 2017, the Court denied petitioner’s motion
to amend judgment, motion for new trial and to amend judgment, and
motion to amend to conform to the evidence.

Petitioner has filed a

Notice of Appeal and a motion for leave to proceed on appeal in forma
pauperis.
Because petitioner is a state prisoner, he must obtain a
Certificate of Appealability (COA) to appeal the dismissal of this
matter. See Montez v. McKinna, 208 F.3d 862, 869 (10th Cir.
2000)(holding that 28 U.S.C. § 2253(c)(1)(A) requires a state prisoner
to obtain a COA whether proceeding under § 2241 or § 2254). To obtain
a COA, a petitioner must make a substantial showing of the denial of
a constitutional right. See 28 U.S.C. § 2253(c)(2). Where, as here,
a petition is dismissed on procedural grounds, “a COA should issue
when the prisoner shows, 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court has considered the record and declines to issue a COA
in this matter. The dismissal without prejudice allows petitioner to
fully exhaust state court remedies before presenting his claims.
IT IS, THEREFORE, BY THE COURT ORDERED a Certificate of
Appealability is denied.
IT IS FURTHER ORDERED petitioner’s motion for leave to proceed
on appeal in forma pauperis (Doc. #17) is granted.
IT IS SO ORDERED.
DATED:

This 2d day of August, 2017, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge