On v. Houston

Filing 26

MEMORANDUM AND ORDER - On's Motion and Affidavit for Leave to Proceed in Forma Pauperis on Appeal (filing no. 23 ) is granted. On's Motion for Certificate of Appealability (filing no. 25 ) is denied without prejudice to reassertion before the Eighth Circuit. Ordered by Senior Judge Warren K. Urbom. (Copy mailed to pro se party) (Copy provided to USCA 8th Circuit as directed) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TRI Q. ON,
Petitioner,
v.
ROBERT HOUSTON,
Respondent.

)
)
)
)
)
)
)
)
)

8:11CV282
MEMORANDUM
AND ORDER ON MOTION FOR
CERTIFICATE OF
APPEALABILITY AND MOTION
AND AFFIDAVIT FOR LEAVE TO
PROCEED IN FORMA PAUPERIS
ON APPEAL

This matter is before me on Tri Q. On’s, Motion for Certificate of
Appealability. (Filing No. 25.) As set forth below, the motion is denied.
The petitioner, Tri Q. On, (“On”) filed his Petition Under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody on August 16, 2011, asserting
claims relating to his convictions for possession with intent to deliver marijuana and
possession of money to facilitate the unlawful possession with intent to deliver
marijuana. (Filing No. 1.) On May 14, 2012, I dismissed On’s claims and entered
judgment in favor of the respondent. (Filing Nos. 20 and 21.) On thereafter filed a
timely Notice of Appeal. (Filing No. 22.)
I.

Motion for Leave to Appeal In Forma Pauperis

Also pending before me is On’s Motion and Affidavit for Leave to Proceed in
Forma Pauperis. (Filing No. 23.) Pursuant to 28 U.S.C. § 1915(a)(1)-(2), and after
considering On’s financial status as shown in the records of this court, provisional
leave to proceed in forma pauperis on appeal will be granted and On is relieved from
paying the appellate filing fee at this time.

II.

Motion 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

1

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).
2

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 On’s Motion for Certificate of
Appealability, the court finds that On has failed to demonstrate that reasonable jurists
would find my ruling debatable or wrong. For the reasons stated in my May 14, 2012,
Memorandum and Order on Petition Under 28 U.S.C. § 2254 for Writ of Habeas
Corpus by a Person in State Custody (filing no. 20), which dismissed On’s habeas
claims as procedurally defaulted, I decline to issue a certificate of appealability.

3

IT IS THEREFORE ORDERED that:
1.
On’s Motion and Affidavit for Leave to Proceed in Forma Pauperis on
Appeal (filing no. 23) is granted.
2.
On’s Motion for Certificate of Appealability (filing no. 25) 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 June 25, 2012.
BY THE COURT
__________________________________________
Warren K. Urbom
United States Senior 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,
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.
4