Tyler v. Heavican et al

Filing 19

MEMORANDUM AND ORDER - Petitioner's Motion for Leave to Appeal IFP (Filing No. 17 ) is granted. Petitioner's Motion for Certificate of Appealability (Filing No. 15), is denied. without prejudice to reassertion before the Eighth Circuit. The Clerk of the court shall provide the Court of Appeals a copy of thisMemorandum and Order. Ordered by Chief Judge Laurie Smith Camp. (Copy sent as directed and mailed to pro se party)(AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BILLY TYLER,
Petitioner,
v.
MICHAEL HEAVICAN, and
NEBRASKKK SUPREME KKKOURT,
Respondents.

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CASE NO. 8:12CV363

MEMORANDUM
AND ORDER

This matter is before the court on Petitioner’s Motion for Certificate of Appealability.
(Filing No. 15.) On April 1, 2013, the court dismissed Petitioner’s habeas corpus claims
and entered Judgment against him. (Filing Nos. 9 and 10.) Petitioner thereafter filed a
timely Notice of Appeal. (Filing No. 11.)
I. Leave to Proceed In Forma Pauperis
Petitioner has filed a Motion for Leave to Appeal In Forma Pauperis (“IFP) (Filing
No. 17) and a Financial Affidavit (Filing No. 18). 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. 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 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:

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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[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. Petitioner has failed to demonstrate
that reasonable jurists would find this court’s ruling debatable or wrong. For the reasons
stated in its April 1, 2013, Memorandum and Order (Filing No. 9), the court declines to
issue a Certificate of Appealability.
IT IS THEREFORE ORDERED that:
1.

Petitioner’s Motion for Leave to Appeal IFP (Filing No. 17) is granted;

2.

Petitioner’s Motion for Certificate of Appealability (Filing No. 15), is denied
without prejudice to reassertion before the Eighth Circuit; and

3.

The Clerk of the court shall provide the Court of Appeals a copy of this
Memorandum and Order.

DATED this 20th day of June, 2013.
BY THE COURT:

s/Laurie Smith Camp
Chief United States 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.
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