Dyer v. Bakewell et al
MEMORANDUM AND ORDER - Petitioner's Motion for Leave to Appeal in Forma Pauperis (Filing No. 29 ) is granted. Petitioner's Motion for Certificate of Appealability (Filing No. 27 ) is denied without prejudice to reassertion before the Eighth Circuit. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party) (Copy provided to 8th Circuit as directed) (TEL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LEWIS FITZGERALD DYER,
DENNIS BAKEWELL, Warden, and
NEBRASKA STATE PENITENTIARY,
CASE NO. 8:11CV312
This matter is before the court on Petitioner’s Motion for Certificate of Appealability.
(Filing No. 27.) As set forth below, the Motion is denied.
Petitioner filed his Petition for Writ of Habeas Corpus on September 15, 2011,
asserting claims relating to his conviction for possession with intent to deliver a controlled
substance. (Filing No. 1.) On May 4, 2012, the court dismissed Petitioner’s claims and
entered judgment in favor of Respondents. (Filing Nos. 25 and 26.) Petitioner thereafter
filed a timely Notice of Appeal. (Filing No. 28.)
Motion for Leave to Appeal In Forma Pauperis
Also pending before the court is Petitioner’s Motion for Leave to Appeal In Forma
Pauperis. (Filing No. 29.) 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.
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
(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
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).
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.
After careful review of the record and Petitioner’s Motion for 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 May
4, 2012, Memorandum and Order (Filing No. 25), which dismissed Petitioner’s habeas
claims on the merits and because some of his claims were procedurally defaulted, the
court declines to issue a certificate of appealability.
IT IS THEREFORE ORDERED that:
Petitioner’s Motion for Leave to Appeal in Forma Pauperis (Filing No. 29) is
Petitioner’s Motion for Certificate of Appealability (Filing No. 27) is denied
without prejudice to reassertion before the Eighth Circuit; and
The Clerk of the court shall provide the Court of Appeals a copy of this
Memorandum and Order.
DATED this 22nd day of June, 2012.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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