Litschewski v. Dooley et al
Filing
18
OPINION AND ORDER denying 13 Motion for Certificate of Appealability. Signed by U.S. District Judge Charles B. Kornmann on 5/7/15. (SKK)
UNITED STATES DISTRICT COURT
PltlD
DISTRICT OF SOUTH DAKOTA
MAY 0 7 2c15
NORTHERN DIVISION
RICHARD LITSCHEWSKI,
1:15-CV-01017-CBK
Plaintiff,
OPINION AND ORDER DENYING
CERTIFICATE OF APPEALABILITY
vs.
ROBERT DOOLEY, Warden and
MARTY JACKLEY, State of South
Dakota Attorney General;
Defendants.
TO THE UNITED ST ATES 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 twice before challenged his 1997 convictions
and sentences and had failed to obtain an order from the Eighth Circuit authorizing a
second or successive petition as required by 28 U.S.C. § 2244(b). Petitioner filed a
notice of appeal and a request for a certificate of appealability.
Pursuant to 28 U.S.C. § 2253, a certificate of appealability may issue only ifthe
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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 obtain permission to file a second or successive petition.
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 ju~ pursuant to Fed. R. App. P. 22.
DATED this
7 .:.--·day of May, 2015.
BY THE COURT:
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United States District Judge
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