Brown v. Foster

Filing 98

ORDER signed by Chief Judge Pamela Pepper on 1/6/2020 DECLINING TO ISSUE certificate of appealability. (cc: all counsel, via mail to Ennis Brown at Wisconsin Secure Program Facility)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ENNIS LEE BROWN,
Petitioner,
Case No. 16-cv-1497-pp
v.
BRIAN FOSTER,
Respondent.

ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALBILITY

In May of 2019, this court dismissed the petitioner’s petition for writ of
habeas corpus because his petition contained both exhausted and
unexhausted claims for relief. Dkt. No. 82. Six months later, the court denied
his motion for reconsideration. Dkt. No. 91. The petitioner has filed an appeal
of those orders Dkt. No. 92. But “[a] state prisoner whose petition for a writ of
habeas corpus is denied by a federal district court does not enjoy an absolute
right to appeal.” Buck v. Davis, —U.S.—, 137 S. Ct. 759, 773 (2017). He must
first obtain a certificate of appealability. See 28 U.S.C. §2253(c)(1).
A court may issue a certificate of appealability only if the applicant
makes a substantial showing of the denial of a constitutional right. See 28
U.S.C. §2253(c)(2). The standard for making a “substantial showing” is whether
“reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed further.”
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Peterson v. Douma, 751 F.3d 524, 528 (7th Cir. 2014) (citing Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). The court declines to issue a certificate of
appealability because no reasonable jurist could debate that the petitioner
presented a “mixed” petition and no reasonable jurist could debate that the
petitioner did not present grounds for reconsideration.
The court DECLINES TO ISSUE a certificate of appealability.
Dated in Milwaukee, Wisconsin this 6th day of January, 2020.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
Chief United States District Judge

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