West v. Dooley et al

Filing 22

ORDER DENYING CERTIFICATE OF APPEALABILITY. Signed by Charles B. Kornmann on 02/28/2012. (SAT)

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NORTHERN DIVISION

STEVEN JON WEST

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Petitioner,
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MAR 0 1 2012

DISTRICT OF SOUTH DAKOTA

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FILED

UNITED STATES DISTRICT COURT

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CIV 11-1014

ORDER DENYING
CERTIFICATE OF APPEALABILITY

ROBERT DOOLEY, Warden, Mike Dwfee
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State Prison, and MARTY J. JACKLEY,
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Attorney General of the State of South Dakota, •
Respondents.

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TO TIffi EIGHTH CIRCUIT COURT OF APPEALS:
This Court dismissed petitioner's petition for a writ of habeas corpus pursuant to 28

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U.S.C. § 2254 on the basis that he had failed to file within the one year period of limitations.

Petitioner filed a notice of appeal. The notice ofappeal may be treated as an application for a
certificate of appealability. Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997).
Pursuant to 28 U.S.C. § 2253, a certificate of appealability may issue only if the applicant

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has made a substantial showing of the denial of a constitutional right.

When the district court denies a habeas petition on procedural grounds
without reaching the prisoner's underlying constitutional claim, a COA
should issue when the prisoner shows, at least, that jurists of reason would
fmd it debatable whether the petition states a valid claim of the denial of a
constitutional right aru1 that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling. This
construction gives meaning to Congress' requirement that a prisoner
demonstrate substantial underlying constitutional claims and is in
conformity with the meaning of the "substantial showing" standard ...
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 circwnstance,
no appeal would be warranted.

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Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000) (emphasis
supplied). Petitioner did not and has not made a substantial showing that jurists of reason would
find it debatable whether this matter was correctly dismissed as untimely.
IT IS HEREBY CERTIFIED that there does not exist probable cause of an appealable

issue with respect to the Court's order denying petitioner's petition for a writ of habeas corpus.
Petitioner's application for a certificate of appealability is denied. This in no way hampers the

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petitioner's ability to request issuance of the certificate by a circuit judge pursuant to Fed. R.
App. P. 22.
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Dated thi~ day of February, 2012.
BY THE COURT:

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CHARLES B. KORNMANN
United States District Judge

ATTEST:

JOSEPH HAAS, Clerk

BfPO Lh.-t9 Q, ~.
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DE~UTY

(SEAL)

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