Gray v. Britten
MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Petitioner's Motion for Leave to Appeal in Forma Pauperis (filing no. 32 ) is granted. Petitioner's Motion for Certificate of Appealability (filing no. 33 ) 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 Chief Judge Joseph F. Bataillon. (Copy mailed to pro se party and as directed)(TCL )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
This matter is before the court on Petitioner’s Notice of Appeal (filing no. 31),
Motion for Leave to Appeal in Forma Pauperis (filing no. 32), and Motion for
Certificate of Appealability (filing no. 33). For the reasons set forth below, the court
will grant Petitioner’s Motion for Leave to Appeal in Forma Pauperis and deny his
Motion for Certificate of Appealability.
On September 7, 2011, the court dismissed Petitioner’s habeas corpus claims
with prejudice. (Filing Nos. 28 and 29.) Petitioner filed a timely Notice of Appeal
on October 4, 2011. (Filing No. 31.)
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. 9.) Federal Rule of Appellate Procedure 24(a)(3)
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. On its own motion, 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.
REQUEST 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
(2) A certificate of appealability may issue under paragraph (1) only if
the applicant has made a substantial showing of the denial of a
(3) The certificate of appealability under paragraph (1) shall indicate
which specific issue or issues satisfy the showing required by paragraph
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
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:
[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.
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 court has carefully reviewed the record and Petitioner’s Motion for
Certificate of Appealability. (Filing No. 33.) Petitioner has failed to demonstrate that
reasonable jurists would find this court’s ruling debatable or wrong. For the reasons
stated in its September 7, 2011, Memorandum and Order (filing no. 28), which
dismissed Petitioner’s claims with prejudice, the court declines to issue a Certificate
IT IS THEREFORE ORDERED that:
Petitioner’s Motion for Leave to Appeal in Forma Pauperis (filing no.
32) is granted.
Petitioner’s Motion for Certificate of Appealability (filing no. 33) 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.
DATED this 26th day of October, 2011.
BY THE COURT:
s/ Joseph F. Bataillon
Chief United States District Judge
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