Holladay v. Houston
MEMORANDUM AND ORDER - Petitioner's Motion for Leave to Appeal in Forma Pauperis (filing no. 18 ) is granted. Petitioner is relieved from paying the appellate filing fee at this time. Petitioner shall have until January 21, 2011, to file a moti on 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 not ice. The Clerk of the court is directed to set a pro se case management deadline in this case with the following text: January 21, 2011: check for COA and separate brief and deny if none filed. Petitioner's Motion for Praecipe for Transcript (filing no. 21 ) is denied. The Eighth Circuit will rely on the court's electronic records in this matter when the appeal is processed. Ordered by Chief Judge Joseph F. Bataillon. (Copy mailed to pro se party)(GJG)
Holladay v. Houston
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA LARRY THOMAS HOLLADAY, Petitioner, v. ROBERT HOUSTON, Director, Nebraska Dept. of Correctional Services, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) 8:10CV152
MEMORANDUM AND ORDER
This matter is before the court on Petitioner's Motion for Leave to Appeal In Forma Pauperis. (Filing No. 18.) On November 19, 2010, the court dismissed Petitioner's habeas corpus claims with prejudice and entered judgment against him. (Filing Nos. 15 and 16.) On December 8, 2010, Petitioner filed a timely Notice of Appeal of the court's Judgment. (Filing No. 17.) Petitioner is a prisoner who was previously granted leave to proceed IFP. (Filing No. 5.) Federal Rule of Appellate Procedure 24(a)(3) states: (a) 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. 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. Although the court grants Petitioner leave to proceed IFP on appeal, the court notes that Petitioner has not filed a Motion for Certificate of Appealability. (See Docket Sheet.) Indeed, 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. § 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 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
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. Id. Petitioner has not filed a motion for a certificate of appealability or a brief in support. (See Docket Sheet.) This matter cannot proceed on appeal until the question of the certificate of appealability is considered. IT IS THEREFORE ORDERED that:
1. Petitioner's Motion for Leave to Appeal in Forma Pauperis (filing no. 18) is granted. Petitioner is relieved from paying the appellate filing fee at this time. 2. Petitioner shall have until January 21, 2011, to file a motion for certificate of appealability and brief in support. 3. 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. 4. The Clerk of the court is directed to set a pro se case management deadline in this case with the following text: January 21, 2011: check for COA and separate brief and deny if none filed. 5. Petitioner's Motion for Praecipe for Transcript (filing no. 21) is denied The Eighth Circuit will rely on the court's electronic records in this matter when the appeal is processed. DATED this 23rd day of December, 2010. BY THE COURT: s/ Joseph F. Bataillon Chief United States District Judge
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