Torres v. Houston

Filing 21

MEMORANDUM AND ORDER - Petitioner's Motion for Reconsideration (Filing No. 20 ) is denied. A certificate of appealability shall not issue in this action. The Clerk of the United States District Court for the District of Nebraska shall provide a copy of this order to the Eighth Circuit Court of Appeals. Ordered by Chief Judge Laurie Smith Camp. (Copies sent as directed and mailed to pro se party)(AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MARCO ENRIQUE TORRES, JR.,
Petitioner,

CASE NO. 4:13CV3027

vs.
ROBERT HOUSTON,

MEMORANDUM
AND ORDER

Respondent.

This matter is before the Court on Petitioner Marco Enrique Torres, Jr.’s Motion
for Reconsideration (Filing No. 20), which seeks reconsideration of this Court's
Judgment (Filing No. 17) denying Petitioner's 28 U.S.C. § 2254 Petition. The Motion
has been carefully considered and the Motion for Reconsideration is denied (Filing No.
20).
Further, before Petitioner can appeal this Court's decision denying his § 2254
Petition, a certificate of appealability must issue. 28 U.S.C. § 2253(c). A certificate of
appealability may issue under 28 U.S.C. § 2253 “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U .S.C. § 2253(c)(2).
When a district court has rejected a constitutional claim on the merits in the course of
denying a § 2254 petition, “[t]he petitioner must demonstrate that reasonable jurists
would find the district court's assessment of the constitutional claims debatable or
wrong” in order to meet the standard contained in § 2253(c). Slack v. McDaniel, 529
U.S. 473, 484 (2000). When a district court denies a § 2254 petition on procedural
grounds without reaching the applicant's underlying constitutional claims on the merits,
a certificate of appealability should issue under § 2253(c) 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, 529
U.S. at 478.
The court must either issue a certificate of appealability indicating which issues
satisfy the required showing, or must state the reasons why such a certificate should not
issue. Fed. R. App. P. 22(b). For the reasons set forth in this Court's Memorandum
and Order denying the § 2254 motion (Filing No. 16), Petitioner has not made a
substantial showing of the denial of a constitutional right within the meaning of 28
U.S.C. § 2253(c).
Accordingly, the Motion for Reconsideration (Filing No. 20) is denied and this
Court will not issue a certificate of appealability in this action.
Accordingly,
IT IS ORDERED:
1.

Petitioner’s Motion for Reconsideration (Filing No. 20) is denied;

2.

A certificate of appealability shall not issue in this action; and

3.

The Clerk of the United States District Court for the District of Nebraska

shall provide a copy of this order to the Eighth Circuit Court of Appeals.

Dated this 9th day of December, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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