Sanders v. Cruickshank et al

Filing 51

MEMORANDUM AND ORDER that the Motion for Leave to Appeal In Forma Pauperis, ECF No. 49 , filed by Petitioner Ricky Sanders, is denied. The Motion for Certificate of Appealability, ECF No. 50 , filed by Petitioner Ricky Sanders, is denied. Ordered by Chief Judge Laurie Smith Camp. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

RICKY J. SANDERS,
Petitioner,

4:17CV3020

vs.
RICHARD CRUICKSHANK, Warden
Nebraska Penitentiary; and SCOTT R.
FRAKES, Director Nebraska Department
of Correctional Services;

MEMORANDUM
AND ORDER

Respondents.

This matter is before the Court on the Motion for Leave to Appeal In Forma
Pauperis, ECF No. 49, and the Motion for Certificate of Appealability, ECF No. 50, filed
by Petitioner Ricky Sanders. Sanders seeks to appeal from the Memorandum and Order,
ECF No. 43, and Judgment, ECF No. 44, denying his Petition for Writ Habeas Corpus
under 28 U.S.C. § 2254, ECF No. 1. Sanders also seeks to appeal from the Memorandum
and Order, ECF No. 48, denying his Motion to Alter or Amend Judgment, ECF No. 45.
The Motions will be denied.
Federal Rule of Appellate Procedure 24 governs Sanders’s ability to proceed in
forma pauperis in this appeal. Before Sanders may appeal the denial of his Petition under
§ 2254, however, a “Certificate of Appealability” must issue. Pursuant to the Antiterrorism
and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”),
the right to appeal the denial of a petition under § 2254 is governed by the certificate of
appealability requirements of 28 U.S.C. § 2253(c). 28 U.S.C. § 2253(c)(2) provides that

a certificate of appealability may issue only if the applicant has made a substantial
showing of the denial of a constitutional right:
(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–
....
(B) the final order in a proceeding under section 2255.
(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).
28 U.S.C. § 2253(c).
A “substantial showing of the denial of a constitutional right” 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) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 & n.4
(1983)).
The issues raised in Sanders’s Petition were carefully considered. For the reasons
set forth in the Court’s previously issued Memorandums and Orders, ECF Nos. 43 and
48, denying his Petition and Rule 59(e) Motion, the Court concludes that Sanders has not
made a substantial showing of the denial of a constitutional right as required by 28 U.S.C.
§ 2253(c).
The Court also notes that Sanders’s request for a certificate of appealability may
be moot because the time for filing a notice of appeal has lapsed. Rule 11(b) of the Rules
2

Governing Section 2254 Cases in the United States District Courts states “Federal Rule
of Appellate Procedure 4(a) governs the time to appeal an order entered under these
rules,” and Rule 4(a) provides that a notice of appeal “must be filed with the district clerk
within 30 days after entry of the judgment or order appealed from.” The Court entered
judgment on July 13, 2018, and no notice of appeal has been filed in this case. Although
Sanders filed a post-judgment motion under Rule 59(e), ECF No. 45, that motion did not
extend the 30-day period for filing a notice of appeal. Rule 11(a), Rules Governing § 2254
Cases in the United States District Courts (stating “[a] motion to reconsider a denial does
not extend the time to appeal.”). Nor does the fact that Sanders has not yet obtained a
certificate of appealability. See 16AA Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure §3968.1 (4th ed.) (stating “a petitioner seeking appellate review
of the denial of a habeas petition must be sure to timely file the notice of appeal, whether
or not a [certificate of appealability] has yet been obtained.”) (citing Lomax v. Armontrout,
923 F.2d 574, 575 n.2 (8th Cir. 1991)). Thus, because Sanders failed to file a notice of
appeal, issuance of a certificate of appealability is likely moot.
For the foregoing reasons, the Court will not grant Sanders’s request for a
certificate of appealability, and it will not grant his request for leave to appeal in forma
pauperis. He may seek a certificate of appealability and leave to appeal in forma pauperis
from the Court of Appeals. Fed. R. App. P. 24(a)(5); 28 U.S.C. § 2253(c)(1). Accordingly,
IT IS ORDERED:
1.

The Motion for Leave to Appeal In Forma Pauperis, ECF No. 49, filed by
Petitioner Ricky Sanders, is denied; and

2.

The Motion for Certificate of Appealability, ECF No. 50, filed by Petitioner
Ricky Sanders, is denied.
3

Dated this 25th day of September, 2018.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

4