Tyler v. Heavican et al
MEMORANDUM AND ORDER - Petitioner shall have until May 24, 2013, 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: May 24, 2013: check for filing of Motion for Certificate of Appealability. Ordered by Chief Judge Laurie Smith Camp. (Copy mailed to pro se party)(GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHAEL HEAVICAN, and
On April 1, 2013, the court dismissed Petitioner’s habeas corpus claims
without prejudice and entered Judgment against him. (Filing Nos. 9 and 10.) On
April 23, 2013, Petitioner filed a timely Notice of Appeal of the court’s Judgment.
(Filing No. 11.)
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
the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a
State court; ....
A certificate of appealability may issue under paragraph (1) only
if the applicant has made a substantial showing of the denial of a
The certificate of appealability under paragraph (1) shall indicate
which specific issue or issues satisfy the showing required by
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. (See Docket Sheet.) Thus, this matter cannot proceed on appeal until the
question of the certificate of appealability is considered.
IT IS THEREFORE ORDERED that:
Petitioner shall have until May 24, 2013, to file a Motion for Certificate
of Appealability and Brief in support.
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).
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: May 24, 2013: check for filing of Motion for Certificate
DATED this 30th day of April, 2013.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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