Deckard v. Nebraska Board of Parole

Filing 24

MEMORANDUM AND ORDER the petitioner shall have until 6/7/2010 to file a motion for certificate of appealability and brief in support; in the event that petitioner fails to file a motion and brief as set forth in this memorandum and order the court wi ll deny the issuance of a certificate of appealability without further notice; petitioner shall have until 6/7/2010 to file a motion for leave to proceed in forma pauperis on appeal; the clerk is directed to send to petitioner the form AO 240; and th e clerk of the court is directed to set a pro se case management in this case as ordered by Judge Laurie Smith Camp. (Pro Se Case Management Deadline set for 6/7/2010: check for filing of motion for certificate of appealability and motion to proceed IFP on appeal.) (Copy mailed to pro se party along with AO240) (SED)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA NATHANIEL DECKARD JR., Petitioner, v. NEBRASKA BOARD OF PAROLE, Respondent. ) ) ) ) ) ) ) ) ) CASE NO. 8:09CV348

MEMORANDUM AND ORDER

On April 2, 2010, the court dismissed Petitioner's habeas corpus claims with prejudice and entered judgment against him. (Filing Nos. 18 and 19.) After the court denied his Motion to Alter or Amend (filing no. 21), Petitioner filed a timely Notice of Appeal of the court's Judgment. (Filing No. 22.) Before Petitioner may appeal the dismissal of his 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. The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph(2).1

(3)

Similarly, Federal Rule of Appellate Procedure 22(b), as amended by the 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

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). Petitioner has not filed a motion for a certificate of appealability or a brief in support. (See Docket Sheet.) Thus, this matter cannot proceed on appeal until the question of the certificate of appealability is considered. In addition, Petitioner has not paid the appellate filing fee or submitted a motion for leave to appeal in forma pauperis. (Filing No. 23.) IT IS THEREFORE ORDERED that: 1. Petitioner shall have until June 7, 2010, to file a motion for certificate of appealability and brief in support; In the event that Petitioner fails to file a motion and brief as set forth in this Memorandum and Order, the court will deny the issuance of a certificate of appealability without further notice; Petitioner shall have until June 7, 2010, to file a motion for leave to proceed in forma pauperis on appeal. The Clerk of the court is directed to send to Petitioner the Form AO240, Application to Proceed Without Prepayment of Fees and Affidavit; and

2.

3.

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). 2

4.

The Clerk of the court is directed to set a pro se case management in this case with the following text: June 7, 2010: check for filing of motion for certificate of appealability and motion to proceed IFP on appeal.

DATED this 7th day of May, 2010. BY THE COURT:

s/Laurie Smith Camp United States District Judge

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