Dopp v. Martin

Filing 41

ORDER denying 37 Notice of Intent to Appeal (Petitioner's implied request for COA) filed by Richard L Dopp. Signed by Honorable Timothy D. DeGiusti on 6/12/19. (kmt)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RICHARD LYNN DOPP,
Petitioner,
v.
TERESA MCCOIN, et al.,
Respondents.

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Case No. CIV-18-520-D

ORDER
Petitioner, a prisoner appearing pro se, has filed a Notice of Intent to Appeal [Doc.
No. 37], which is construed as an implied application for a certificate of appealability
(COA) to appeal a partial denial of his Petition for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241.

See 5/2/19 Order [Doc. No. 32]; see also 28 U.S.C. § 2253(c)(1)(A).

Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, which may also
apply in § 2241 cases, the Court must issue or deny a certificate of appealability (“COA”)
when it enters a final order adverse to a petitioner.

Because the Court entered a judgment

in Petitioner’s favor in this case, it did not consider the issue of whether to grant or deny a
COA at the time the judgment was entered.

After Petitioner appealed, however, the Tenth

Circuit ordered a limited remand “to consider whether to issue a COA for this appeal.”
See Dopp v. McCoin, No. 19-6089, Order (10th Cir. May 31, 2019).
A COA may issue only if Petitioner “has made a substantial showing of the denial
of a constitutional right.”

See 28 U.S.C. § 2253(c)(2).

“A petitioner satisfies this

standard by demonstrating 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, 327 (2003); see Slack v. McDaniel, 529 U.S. 473, 484 (2000).

This

determination “requires an overview of the claims in the habeas petition and a general
assessment of their merits.”

Miller-El, 537 U.S. at 336.

Petitioner need not prove the

merits of his case, but he must demonstrate “something more than the absence of frivolity
or the existence of mere good faith” on his part.

Id. at 338 (internal quotations omitted).

“Where a district court has rejected the constitutional claims on the merits, . . . [t]he
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.

Upon review of the record, the magistrate judge’s Report and Recommendation,
Petitioner’s Objection, the Order adopting the Report, and Petitioner’s post-judgment
motions, the Court finds no issue presented and decided in this case on which reasonable
jurists would find the Court’s ruling was debatable or wrong.

To the contrary, on the

primary issue raised by Petitioner regarding his confinement in a disciplinary housing unit
before a misconduct charge of escape was adjudicated, the court of appeals’ recent opinion
in Al-Turki v. Tomsic , No. 18-1226, 2019 WL 2402361, *5-6 (10th Cir. June 7, 2019) (to
be published), confirms the correctness of the Court’s ruling in this case that Sandin v.
Conner, 515 U.S. 472 (1995), supplies the proper standard for determining whether
Petitioner’s placement implicated a liberty interest.
request for a COA is DENIED.

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Accordingly, Petitioner’s implied

IT IS SO ORDERED this 12th day of June, 2019.

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