Davis v. Houston

Filing 35

MEMORANDUM AND ORDER that the 32 Motion to Appoint Counsel and 33 Motion for Certificate of Appealability are denied without prejudice to reassertion before the Eighth Circuit Court of Appeals; and The Clerk of the court shall provide the Eighth Circuit Court of Appeals a copy of this Memorandum and Order. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
STEVE L. DAVIS,
Petitioner,
v.
ROBERT HOUSTON,
Respondent.

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CASE NO. 4:10CV3138

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner’s Motion for Certificate of Appealability
(Filing No. 33) and Motion to Appoint Counsel (Filing No. 32). As set forth below, both
Motions are denied.
Petitioner filed his Petition for Writ of Habeas Corpus on July 19, 2010, asserting
claims relating to his conviction for delivery of a controlled substance. (Filing No. 1.) On
May 13, 2011, the court dismissed Petitioner’s claims with prejudice and entered judgment
in favor of Respondent. (Filing Nos. 23 and 24.) Petitioner thereafter filed a timely Notice
of Appeal (Filing No. 25) and the court granted him leave to proceed in forma pauperis on
appeal (Filing No. 30).
I.

Motion for Certificate of Appealability
Before a petitioner may appeal the dismissal of a petition for writ of habeas corpus,

a “Certificate of Appealability” must issue. Pursuant to the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), the right to appeal such a dismissal is governed by
28 U.S.C. § 2253(c), which states:
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from–

(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court;
....
(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional
right.
(3) The certificate of appealability under paragraph (1) shall indicate which
specific issue or issues satisfy the showing required by paragraph(2).1
A certificate of appealability may issue only if the applicant has made a substantial
showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Such a
showing requires a demonstration “that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed further.” Slack
v. McDaniel, 529 U.S. 473, 484 (2000), (internal quotation marks omitted), citing Barefoot
v. Estelle, 463 U.S. 894 (1983), (defining pre-AEDPA standard for a certificate of probable
cause to appeal).
“Where a district court has rejected the constitutional claims on the merits, the
showing required to satisfy §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.” Slack, 529 U.S. at 484. Similarly, if the district court denies a petition
for writ of habeas corpus on procedural grounds without reaching the underlying
constitutional claims on the merits:
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Similarly, Federal Rule of Appellate Procedure 22(b), as amended by AEDPA,
indicates that in an action pursuant to 28 U.S.C. § 2254, a notice of appeal triggers the
requirement that the district judge who rendered the judgment either issue a certificate of
appealability or state the reasons why such a certificate should not issue. See generally
Tiedeman v. Benson, 122 F.3d 518, 521 (8th Cir. 1997).
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[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 ... would find it debatable whether the
district court was correct in its procedural ruling .... Where a plain procedural
bar is present and the district court is correct to invoke it to dispose of the
case, a reasonable jurist could not conclude either that the district court erred
in dismissing the petition or that the petitioner should be allowed to proceed
further. In such a circumstance, no appeal would be warranted.
Id.
After careful review of the record and Petitioner’s Motion for Certificate of
Appealability (Filing No. 33) and Brief in support (Filing No. 34), the court finds that
Petitioner has failed to demonstrate that reasonable jurists would find this court’s ruling
debatable or wrong. For the reasons stated in its May 13, 2011, Memorandum and Order
(Filing No. 23), which dismissed Petitioner’s habeas claims on the merits after affording
substantial deference to the Nebraska state court decisions, the court declines to issue a
certificate of appealability.
II.

Motion to Appoint Counsel
Petitioner also seeks the appointment of counsel for his appeal. (Filing No. 32.)

“There is neither a constitutional nor statutory right to counsel in habeas proceedings;
instead, [appointment] is committed to the discretion of the trial court.” McCall v. Benson,
114 F.3d 754, 756 (8th Cir. 1997). As a general rule, counsel will not be appointed unless
the case is unusually complex or the petitioner’s ability to investigate and articulate the
claims is unusually impaired or an evidentiary hearing is required. See, e.g., Morris v.
Dormire, 217 F.3d 556, 558-59 (8th Cir. 2000), cert. denied, 531 U.S. 984 (2000); Hoggard
v. Purkett, 29 F.3d 469, 471 (8th Cir. 1994), (citations omitted). See also Rule 8(c) of the
Rules Governing Section 2254 Cases in the United States District Courts (requiring
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appointment of counsel if an evidentiary hearing is warranted.) The court has carefully
reviewed the record and finds that there is no need for the appointment of counsel at this
time. However, Petitioner may request appointment of counsel from the Eighth Circuit
Court of Appeals.
IT IS THEREFORE ORDERED that:
1.

Petitioner’s Motion for Certificate of Appealability (Filing No. 33) and Motion
to Appoint Counsel (Filing No. 32) are denied without prejudice to reassertion
before the Eighth Circuit Court of Appeals; and

2.

The Clerk of the court shall provide the Eighth Circuit Court of Appeals a
copy of this Memorandum and Order.

DATED this 22nd day of March, 2012.
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S.
District Court for the District of Nebraska does not endorse, recommend, approve, or
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Likewise, the court has no agreements with any of these third parties or their Web sites.
The court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the court.
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