Brown v. State of Nebraska
Filing
36
MEMORANDUM AND ORDER granting Brown's 34 Application and Affidavit in Support of Application to Proceed In Forma Pauperis. Brown is relieved from paying the appellate filing fee at this time. Brown shall have until October 27, 2011, to file a motion for certificate of appealability and brief in support. In the event that Brown fails to file a motion and brief as set forth in this Memorandum and Order on Application and Affidavit in Support of Application to Proceed in Forma Pauperis, the court will deny the issuance of a certificate of appealability without further notice. The clerk of the court is directed to set a pro se case management deadline in this case with the following text: October 27, 2011: check for COA and separate brief and deny if none filed. Ordered by Senior Judge Warren K. Urbom. (Copy mailed/e-mailed to pro se party)(MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TERRON BROWN,
Petitioner,
v.
STATE OF NEBRASKA,
Respondent.
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8:10CV236
MEMORANDUM
AND ORDER ON APPLICATION
AND AFFIDAVIT IN SUPPORT
OF APPLICATION TO PROCEED
IN FORMA PAUPERIS
This matter is before me on the Application and Affidavit in Support of
Application to Proceed In Forma Pauperis of the petitioner, Terron Brown. (Filing
No. 34.) On August 31, 2011, I dismissed Brown’s habeas corpus claims with
prejudice and entered judgment against him. (Filing Nos. 31 and 32.) On September
19, 2011, Brown filed a timely Notice of Appeal of the judgment. (Filing No. 33.)
Pursuant to 28 U.S.C. § 1915(a)(1)-(2), and after considering Brown’s financial status
as shown in the records of this court, provisional leave to proceed in forma pauperis
on appeal will be granted and Brown is relieved from paying the appellate filing fee
at this time.
Although the court grants Terron Brown leave to proceed IFP on appeal, I note
that Brown 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. §
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:
1
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).
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[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.
Terron Brown 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.
Brown’s Application and Affidavit in Support of Application to Proceed
In Forma Pauperis (filing no. 34) is granted. Brown is relieved from paying the
appellate filing fee at this time.
2.
Brown shall have until October 27, 2011, to file a motion for certificate
of appealability and brief in support.
3.
In the event that Brown fails to file a motion and brief as set forth in this
Memorandum and Order on Application and Affidavit in Support of Application to
Proceed in Forma Pauperis, the court will deny the issuance of a certificate of
appealability without further notice.
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4.
The clerk of the court is directed to set a pro se case management
deadline in this case with the following text: October 27, 2011: check for COA and
separate brief and deny if none filed.
Dated September 27, 2011.
BY THE COURT
s/ Warren K. Urbom
United States Senior District Judge
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