Robinson v. Kinney et al

Filing 56

ORDER - IT IS ORDERED THAT: Petitioner is permitted to appeal in forma pauperis. No certificate of appealability will issue. Ordered by Senior Judge Joseph F. Bataillon. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DANNY R. ROBINSON,
Petitioner,

8:14CV97

v.
ORDER
DIANE SABTKA-RINE, Neb. Stat.
Penitentiary, and SCOTT FRAKES,
Respondents.

This matter is before the court on Danny R. Robinson’s Notice of Appeal, Filing No.
51, and the Clerk’s Office Memo regarding in forma pauperis status and certificate of
appealability, Filing No. 52.
Under the Federal Rules of Appellate Procedure, a party who was permitted to
proceed in forma pauperis in the district-court action may proceed on appeal in forma
pauperis without further authorization, unless the district court certifies that the appeal is not
taken in good faith or finds that the party is not otherwise entitled to proceed in forma
pauperis. See Fed. R. App. P. 24(a)(3)(A); 28 U.S.C. § 1915(a)(3). There is no indication
that the appeal is not taken is good faith and the court finds the petitioner may proceed in
forma pauperis on appeal.
A petitioner cannot appeal an adverse ruling on his petition for writ of habeas corpus
under § 2254 unless he is granted a certificate of appealability. 28 U.S.C. § 2253(c)(1);
Fed. R. App. P. 22(b)(1). Rule 11(a) of the Rules Governing § 2254 Cases requires a
district court to “issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.”

Under 28 U.S.C. § 2253(c)(2), a certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.” See MillerEl v. Cockrell, 537 U.S. 322, 335-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84
(2000); Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983); see also Williams v. Taylor, 529
U.S. 362, 402-13 (2000) (setting out the standards applicable to a § 2254 petition on the
merits). In order to obtain a certificate of appealability, a petitioner must show “that jurists of
reason could disagree with the district court's resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). When dismissal is based
on procedural grounds, a petitioner must show, “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
that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484.
This court found several of the petitioner’s grounds for relief were procedurally
barred and the remaining claims lacked merit. The court finds that jurists of reason would
not find this court’s conclusions debatable. Accordingly,
IT IS ORDERED THAT:
1.

Petitioner is permitted to appeal in forma pauperis.

2.

No certificate of appealability will issue.

Dated this 7th day of February, 2017.
BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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