Nelson v. Flemmer et al

Filing 16

OPINION AND ORDER denying 13 Motion for Certificate of Appealability. Signed by U.S. District Judge Charles B. Kornmann on 3/5/15. (SKK)

,,

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
NORTHERN DIVISION
FRANKLIN SANDOVAL NELSON,

1: 15-CV-01001-CBK

Plaintiff,
OPINION AND ORDER DENYING
CERTIFICATE OF APPEALABILITY

vs.
JUDGE JON S. FLEMMER, STATE'S
ATTORNEY KERRY F. CAMERON,
WARDEN ROBERT DOOLEY, and
OFFICER OF THE COURT TIMOTHY J.
CUMMINGS, IN THEIR OFFICIAL AND
INDIVIDUAL CAPACITIES;
Defendants.

TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT:
This Court dismissed petitioner's petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 on the basis that he had failed to exhaust his state court direct appeal
and habeas remedies. Petitioner filed a notice of appeal and a request for a certificate of
appealabili ty.
Pursuant to 28 U.S.C. § 2253, a certificate of appealability may issue only if the
applicant 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 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. 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
circumstance, no appeal would be warranted.
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 for
failure to exhaust state court remedies.
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, Doc. 13, is
denied. This in no way hampers the petitioner's ability to request issuance of the
certificate by a circuit judge pursuant to Fed. R. App. P. 22.
DATED this

S~ayofMarch,2015.
BY THE COURT:

~~.~~
CHARLES B. ~ NMANN
United States District Judge

2