Zuck v. Sabatka-Rine et al
MEMORANDUM AND ORDER - Petitioner's Motion for Leave to Appeal IFP (Filing No. 32 ) is granted. Petitioner's Motion for Certificate of Appealability (Filing No. 36 ) is denied without prejudice to reassertion before the Eighth Circuit. The Clerk of the court shall provide the Court of Appeals a copy of this Memorandum and Order. Ordered by Judge Laurie Smith Camp. (Copy mailed/e-mailed to pro se party)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
WILLIAM W. ZUCK,
DIANE J. SABATKA-RINE, Warden,
and ROBERT P. HOUSTON, Director, )
Nebraska Department of Correctional )
CASE NO. 4:10CV3203
This matter is before the court on Petitioner’s Motion for Leave to Appeal In Forma
Pauperis (“IFP”) and Motion for Certificate of Appealability. (Filing Nos. 32 and 36.) On
May 23, 2011, the court dismissed Petitioner’s habeas corpus claims with prejudice and
entered Judgment against him. (Filing Nos. 26 and 27.) Petitioner thereafter filed a timely
Notice of Appeal. (Filing No. 32.)
I. Motion for Leave to Appeal In Forma Pauperis
Petitioner is a prisoner who has previously been granted leave to proceed in forma
pauperis (“IFP”). (Filing No. 6.) Federal Rule of Appellate Procedure 24(a)(3) states:
Leave to Proceed in Forma Pauperis . . . .
(3) Prior Approval. A party who was permitted to proceed in forma
pauperis in the district-court action, or who was determined to be financially
unable to obtain an adequate defense in a criminal case, may proceed on
appeal in forma pauperis without further authorization, unless the district
court—before or after the notice of appeal is filed—certifies that the appeal
is not taken in good faith or finds that the party is not otherwise entitled to
proceed in forma pauperis and states in writing its reasons for the
certification or finding[.]
Id. The court finds that because Petitioner was previously given leave to proceed IFP, he
may now “proceed on appeal in forma pauperis without further authorization” in accordance
with Federal Rule of Appellate Procedure 24.
II. 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
(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
Similarly, Fed. R. App. P. 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).
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:
[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
The court has carefully reviewed the record, Petitioner’s Motion for Certificate of
Appealability and his Brief in Support. (Filing Nos. 36 and 37.) Petitioner has failed to
demonstrate that reasonable jurists would find this court’s ruling debatable or wrong. For
the reasons stated in its May 23, 2011, Memorandum and Order (Filing No. 26), the court
declines to issue a Certificate of Appealability.
IT IS THEREFORE ORDERED that:
Petitioner’s Motion for Leave to Appeal IFP (Filing No. 32) is granted;
Petitioner’s Motion for Certificate of Appealability (Filing No. 36) is denied
without prejudice to reassertion before the Eighth Circuit; and
The Clerk of the court shall provide the Court of Appeals a copy of this
Memorandum and Order.
DATED this 18th day of July, 2011.
BY THE COURT:
s/Laurie Smith Camp
United States District Judge
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