Lathrop v. Britton

Filing 17

MEMORANDUM AND ORDER - Petitioner's Motion for Leave to Appeal In Forma Pauperis (filing no. 14 ) is granted. Petitioner's Notice of Appeal, liberally construed as a request for a certificate of appealability (filing no. 13 ) is denied without prejudice to reassertion before the Eighth Circuit. The Clerk of the court shall provide the Court of Appeals a copy of this Memorandum and Order. Ordered by Chief Judge Joseph F. Bataillon. (Copy mailed to pro se party) (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DANIEL J. LATHROP,
Petitioner,
v.
ATTORNEY GENERAL OF
NEBRASKA, and FRED BRITTEN,
Respondents.

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8:11CV32

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner’s Notice of Appeal, which the
court liberally construes as also requesting a certificate of appealability. (Filing No.
13.) As set forth below, the request is denied.
Petitioner filed his Petition for Writ of Habeas Corpus on February 2, 2011,
asserting claims relating to his sexual assault on a child conviction. (Filing No. 1.)
On June 27, 2011, the court dismissed Petitioner’s claims and entered judgment in
favor of Respondents. (Filing Nos. 11 and 12.) Petitioner thereafter filed a timely
Notice of Appeal. (Filing No. 13.)
I.

Motion for Leave to Appeal in Forma Pauperis

Petitioner filed a Motion for Leave to Proceed In Forma Pauperis on Appeal.
(Filing No. 14.) Pursuant to 28 U.S.C. § 1915(a)(1)-(2), and after considering
Petitioner’s financial status as shown in the records of this court, provisional leave
to proceed in forma pauperis on appeal will be granted and Petitioner is relieved from
paying the appellate filing fee at this time.

II.

Application for Certificate of Appealability

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

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Similarly, Federal Rule of Appellate Procedure 22(b), as amended by 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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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.
After careful review of the record and Petitioner’s Notice of Appeal, liberally
construed as a request for a certificate of appealability, the court finds that Petitioner
has failed to demonstrate that reasonable jurists would find this court’s ruling
debatable or wrong. For the reasons stated in its June 27, 2011, Memorandum and
Order (filing no. 11), which dismissed Petitioner’s habeas claims on the merits after
affording substantial deference to the Nebraska state court decisions, the court
declines to issue a certificate of appealability.

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IT IS THEREFORE ORDERED that:
1.
Petitioner’s Motion for Leave to Appeal In Forma Pauperis (filing no.
14) is granted.
2.
Petitioner’s Notice of Appeal, liberally construed as a request for a
certificate of appealability (filing no. 13) is denied without prejudice to reassertion
before the Eighth Circuit.
3.
The Clerk of the court shall provide the Court of Appeals a copy of this
Memorandum and Order.
DATED this 31st day of August, 2011.
BY THE COURT:
s/ Joseph F. Bataillon
Chief United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The
U.S. District Court for the District of Nebraska does not endorse, recommend,
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or their Web sites. The court accepts no responsibility for the availability or
functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.
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