Rhines v. Weber
ORDER denying as moot 358 Motion for Leave to Proceed in forma pauperis; granting 361 Motion for Certificate of Appealability as to the issues stated in the Order. Signed by U.S. District Judge Karen E. Schreier on 8/11/16. (DJP)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CHARLES RUSSELL RHINES,
DARIN YOUNG, Warden, South Dakota
ORDER ISSUING CERTIFICATE OF
APPEALABILITY DENYING MOTION
FOR LEAVE TO PROCEED IN
FORMA PAUPERIS ON APPEAL
Petitioner, Charles Russell Rhines, moves for a certificate of
appealability. Docket 361. Rhines may not appeal the denial of his motion
under 28 U.S.C. § 2255 unless he receives a certificate of appealability. 28
U.S.C. § 2253(c)(1). Rhines must make “a substantial showing of the denial of a
constitutional right” to receive a certificate of appealability. Id. § 2253(c)(2). “A
substantial showing is a showing that issues are debatable among reasonable
jurists, a court could resolve the issues differently, or the issues deserve
further proceedings.” Bell v. Norris, 586 F.3d 624, 632 n. 3 (8th Cir. 2009)
(citing Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997)).
The court finds that Rhines has made “a substantial showing of the
denial of a constitutional right” concerning the following issues:
Violation of Miranda Rights By Admission of Statements
Violation of Sixth and Fourteenth Amendments by Improper
Exclusion of Two Jurors for Cause
The Admission of Victim Impact Evidence Violated the Ex Post Facto
and Due Process Clauses of the Constitution
The Presence of an Unconstitutionally Vague Aggravator Violated
Rhines’s Eighth and Fourteenth Amendment Rights
South Dakota’s Capital Punishment Statute is Unconstitutional
The Penalty-Phase Instructions Violated Rhines’s Rights to Due
Process and a Fair Trial
Insufficient Evidence Supported the Jury’s Finding of Two Statutory
Rhines’s Counsel Rendered Ineffective Assistance
The Prosecutor Engaged in Misconduct
10. Procedural Rulings Concerning Standard of Review, Denial of
Abeyance, Determination that Martinez v. Ryan Does Not Apply, and
Denial of Rule 59 Motion
A certificate of appealability is granted as to these issues.
Rhines also moves for leave to proceed in forma pauperis on appeal.
Docket 358. “A party who was permitted to proceed in forma pauperis in the
district court action . . . may proceed on appeal in forma pauperis without
further authorization[.]” Fed. R. App. P. 24(a)(3). On March 3, 2000, this court
granted Rhines’ motion to proceed in forma pauperis. Docket 9. Therefore, he
may proceed in forma pauperis on appeal without authorization.
Accordingly, it is ORDERED
1. Rhines’s certificate of appealability (Docket 361) is granted as to the
issues listed above.
2. Rhines’s motion for leave to proceed in forma pauperis (Docket 358) is
denied as moot.
Dated August 11, 2016.
BY THE COURT:
/s/Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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