Tyler v. Huber et al

Filing 12

MEMORANDUM AND ORDER - IT IS ORDERED: Petitioner shall have until August 22, 2011, 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. The clerk of the court is directed to set a pro se case management in this case with the following text: August 22, 2011: check for filing of motion for certificate of appealability. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party)(TCL )

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
BILLY TYLER,

)
)
Petitioner,
)
)
v.
)
)
HUBER and DOUGLAS COUNTY
)
DISTRICT COURT,
)
)
Respondents.
)
______________________________)

8:11CV103

MEMORANDUM AND ORDER

On July 18, 2011, the Court dismissed petitioner’s
habeas corpus claims and entered judgment against him (Filing
Nos. 8 and 9).

On July 21, 2011, petitioner filed a Notice of

Appeal (Filing No. 10).
However, 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.

(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).
Petitioner has not filed a motion for a Certificate of
Appealability or a brief in support.

1

(See Docket Sheet.)

Thus,

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-

this matter cannot proceed on appeal until the question of the
certificate of appealability is considered.

Accordingly,

IT IS ORDERED:
1.

Petitioner shall have until August 22, 2011, to

file a motion for certificate of appealability and brief in
support.
2.

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.
3.

The clerk of the court is directed to set a pro se

case management in this case with the following text: August 22,
2011: check for filing of motion for certificate of
appealability.
DATED this 25th day of July, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

* 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, approve, or guarantee any third
parties or the services or products they provide on their Web
sites. Likewise, the Court has no agreements with any of these
third parties 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.
-3-