Glassco v. Houston

Filing 31

MEMORANDUM AND ORDER - IT IS THEREFORE ORDERED that: Petitioner's Motion for Leave to Proceed IFP on Appeal is granted. (Filing No. 28 .) Petitioner's Motion for Certificate of Appealability (Filing No. 29 ) 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 Senior Judge Richard G. Kopf. (Copy mailed to pro se party and as directed)(TCL )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SCOTTY R. GLASSCO,
Petitioner,
v.
ROBERT HOUSTON, Director of
Department of Corrections,
Respondent.

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4:11CV3231

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner Scotty R. Glassco’s Notice of
Appeal, Motion for Leave to Proceed in Forma Pauperis (“IFP”) on Appeal, and
Motion for Certificate of Appealability. (Filing Nos. 27, 28, and 29.) On August 23,
2012, the court dismissed Glassco’s Petition for Writ of Habeas Corpus with
prejudice. (Filing Nos. 23 and 24.) Thereafter, Glassco filed a timely Notice of
Appeal. (Filing No. 27 (see also Filing No. 26 extending the time in which to file a
notice of appeal for good cause shown).) For the reasons set forth below, the court
will grant Petitioner leave to proceed IFP, and deny his Motion for Certificate of
Appealability.
MOTION FOR LEAVE TO APPEAL IFP
Pursuant to 28 U.S.C. § 1915(a)(1)-(2), and after considering Petitioner’s
financial status as shown in the records of this court, leave to proceed in forma
pauperis on appeal will be granted and Petitioner is relieved from paying the appellate
filing fee at this time.
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
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).

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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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“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.
Id.
The court has carefully reviewed the record and Petitioner’s Motion for
Certificate of Appealability. (Filing No. 29.) Petitioner has failed to demonstrate that
reasonable jurists would find this court’s ruling debatable or wrong. For the reasons
stated in the court’s August 23, 2012, Memorandum and Order (Filing No. 23), which
dismissed Petitioner’s claims with prejudice, the court declines to issue a Certificate
of Appealability.
IT IS THEREFORE ORDERED that:
1.

Petitioner’s Motion for Leave to Proceed IFP on Appeal is granted.

(Filing No. 28.)

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2.

Petitioner’s Motion for Certificate of Appealability (Filing No. 29) is

denied without prejudice to reassertion before the Eighth Circuit.
3.

The Clerk of the court shall provide the Court of Appeals a copy of this

Memorandum and Order.
DATED this 9th day of November, 2012.
BY THE COURT:
Richard G. Kopf
Senior 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 guarantee any third parties or the services or products they provide on
their Web sites. 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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