DeNoyer v. State of Nebraska et al
ORDER denying 28 Motion for Reconsideration. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party)(MLF, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DALE E. DENOYER,
STATE OF NEBRASKA,
GENERAL, and FRED BRITTEN,
This matter is before the court on Petitioner Dale DeNoyer’s Motion to
Reconsider (Filing No. 28) the court’s Memorandum and Order dated March 30, 2015
(Filing No. 26). In that order, the court dismissed DeNoyer’s Petition for Writ of
Habeas Corpus because it failed to state a claim for relief. In addition, the court denied
a certificate of appealability.
DeNoyer argues that, in the court’s discussion of whether or not a certificate of
appealability should issue in this case, the court improperly characterized DeNoyer’s
habeas corpus petition as one brought pursuant to 28 U.S.C. § 2254. DeNoyer is
correct. Because DeNoyer is a pretrial detainee, habeas corpus jurisdiction arises under
28 U.S.C. § 2241(c)(3) in this case.
DeNoyer also argues the court improperly denied a certificate of appealability
because one is not required to appeal the denial of a petition brought pursuant to
§ 2241. On this issue, DeNoyer is incorrect. Title 28 U.S.C. § 2253 provides that:
(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
28 U.S.C. § 2253(c)(1)(A). See also Hoffler v. Bezio, 726 F.3d 144, 154 (2nd Cir.
2013) (state prisoner must procure a certificate of appealability to appeal a denial of
habeas relief sought pursuant to 29 U.S.C. § 2241); Evans v. Circuit Court, 569 F.3d
665, 666-67 (7th Cir. 2009) (same); Wilson v. Belleque, 554 F.3d 816, 824-25 (9th Cir.
2009) (same); United States v. Cepero, 224 F.3d 256, 264 (3d Cir. 2000) (same),
abrogated on other grounds by Gonzalez v. Thaler, 132 S. Ct. at 647 n. 1; Montez v.
McKinna, 208 F.3d 862, 869 (10th Cir. 2000) (same); Stringer v. Williams, 161 F.3d
259, 262 (5th Cir. 1998) (same).
Thus, while it is correct that the court improperly characterized DeNoyer’s
petition as one arising under 28 U.S.C. § 2254 in its discussion of whether a certificate
of appealability should issue, the result is the same. DeNoyer may not appeal the
adverse ruling in this case unless he is granted a certificate of appealability, see 28
U.S.C. § 2253(c)(1)(A), and a certificate of appealability cannot be granted unless he
“has made a substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2). DeNoyer has not made a substantial showing of the denial of a
constitutional right in this case.
IT IS THEREFORE ORDERED that: DeNoyer’s Motion to Reconsider (Filing
No. 28) is denied.
DATED this 9th day of April, 2015.
BY THE COURT:
Richard G. Kopf
Senior United States District Judge
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