Tyler v. Huber et al

Filing 15

MEMORANDUM AND ORDER - Petitioner's motion for leave to appeal IFP (Filing No. 11 ) is granted. Petitioner's duplicative motion for leave to appeal IFP (Filing No. 14 ) is denied as moot. Petitioner's motion in arrest of judgment (Fi ling No. 13 ), construed as a motion for certificate of appealability, 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 Senior Judge Lyle E. Strom. (Copy mailed/e-mailed to pro se party and to the Court of Appeals)(GJG)

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

This matter is before the Court on petitioner’s motions
for leave to appeal in forma pauperis (“IFP”) and motion in
arrest of judgment (Filing Nos. 11, 13 and 14).

On July 18,

2011, the Court dismissed petitioner’s habeas corpus claims
because the Court lacked subject matter jurisdiction and entered
judgment against him (Filing Nos. 8 and 9).

Petitioner

thereafter filed a timely Notice of Appeal (Filing No. 10).
I. Motions for Leave to Appeal In Forma Pauperis
Petitioner is a nonprisoner who has previously been
granted leave to proceed in forma pauperis (“IFP”)(Filing No. 4).
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.
II. Motion for Certificate of Appealability
On July 25, 2011, the Court entered a Memorandum and
Order giving plaintiff until August 22, 2011, to file a motion
for certificate of appealability and brief in support (Filing No.
12).

In response to this Memorandum and Order, petitioner filed

a motion in arrest of judgment, which the Court liberally
construes as a motion for certificate of appealability (Filing
No. 13).

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—
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(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)).
1

Similarly, Fed. R. App. P. 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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“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.”
at 484.

Slack, 529 U.S.

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.
The Court has carefully reviewed the record and
petitioner’s motion (Filing No. 13).

Petitioner has failed to

demonstrate that reasonable jurists would find this Court’s
ruling debatable or wrong.

For the reasons stated in its July

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18, 2011, Memorandum and Order (Filing No. 8), the Court declines
to issue a certificate of appealability.
IT IS ORDERED:
1.

Petitioner’s motion for leave to appeal IFP

(Filing No. 11) is granted.

Petitioner’s duplicative motion for

leave to appeal IFP (Filing No. 14) is denied as moot.
2.

Petitioner’s motion in arrest of judgment (Filing

No. 13), construed as a motion for certificate of appealability,
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 26th day of August, 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
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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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