Melgoza Ramirez v. Britten

Filing 20

MEMORANDUM AND ORDER granting 19 Motion for Leave to Appeal in forma pauperis; The Court declines to issue a certificate of appealability without prejudice to petitioner seeking a certificate of appealability in the Eighth Circuit Court of Appeals; 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 to pro se party)(ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JUAN A. MELGOZA RAMIREZ,

)
)
Petitioner,
)
)
v.
)
)
FRED BRITTEN,
)
)
Respondent.
)
______________________________)

8:12CV74

MEMORANDUM AND ORDER

This matter is before the Court on petitioner’s Motion
for Leave to Appeal In Forma Pauperis (Filing No. 19).
forth below, the motion will be granted.

As set

However, the Court

declines to issue a certificate of appealability.
Petitioner filed his Petition for Writ of Habeas Corpus
on February 21, 2012, asserting claims relating to his conviction
for second degree murder (Filing No. 1).

On October 1, 2012, the

court dismissed petitioner’s claims and entered judgment in favor
of respondent (Filing Nos. 16 and 17).

Petitioner thereafter

filed a timely Notice of Appeal (Filing No. 18).
I.

Motion for Leave to Appeal In Forma Pauperis
Pending before the Court is petitioner’s Motion for

Leave to Appeal In Forma Pauperis (Filing No. 19.)

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.

Certificate of Appealability
Although petitioner is permitted to appeal in forma

pauperis, 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

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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).
“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.”

1

Slack, 529 U.S. at

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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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, 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 October 1, 2012, Memorandum Opinion (Filing
No. 16), which dismissed petitioner’s habeas claims on the
merits, the Court declines to issue a certificate of
appealability.

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IT IS ORDERED:
1.

Petitioner’s Motion for Leave to Appeal in Forma

Pauperis (Filing No. 19) is granted.
2.

The Court declines to issue a certificate of

appealability without prejudice to petitioner seeking a
certificate of appealability in the Eighth Circuit Court of
Appeals.
3.

The clerk of the court shall provide the Court of

Appeals a copy of this Memorandum and Order.
DATED this 14th day of November, 2012.
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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of the Court.
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