Lammers, James v. Mccaughtry, Warden

Filing 13

ORDER denying 12 Motion for Reconsideration and denying a certificate of appealability. Signed by District Judge Barbara B. Crabb on 8/30/2010. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------JAM ES LAMMERS, ORDER Petitioner, 1 0 - c v - 3 4 5 -b b c v. W ARD EN McCAUGHTRY, Warden, W aupun Correctional Institution, R esponden t. --------------------------------------------On August 10, 2010, I dismissed James Lammers's petition for a writ of habeas corpus with prejudice because he is not in custody as a result of his conviction in case 95-CF-412, which is the conviction he is challenging. reconsideration of this decision. Dkt. #12. In his motion, petitioner has not presented any evidence that he is custody as a result of his conviction in 95-CF-412 Therefore, his motion for reconsideration will be denied. As a final matter, in my decision dismissing petitioner's petition, I failed to issue or deny a ceritfical of appealabililty as I am now required to do under Rule 11 of the Rules G overning Section 2254 Cases. To obtain a certificate of appealability, the applicant must Now before the court is his motion for

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m ake a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); T ennard v. Dretke, 542 U.S. 274, 282 (2004). This means that "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." Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations and citatio ns omitted). Although the rule allows a court to ask the parties to submit arguments on whether a certificate should issue, it is not necessary to do so in this case because the question is not a close one. For the reasons stated, reasonable jurists would not debate the decision that Lamm ers's petition should be dismissed because he is no longer in custody pursuant to the conviction he is challenging. Therefore, no certificate of appealability will issue.

ORDER IT IS ORDERED that: 1. James D. Lammers's motion for reconsideration, dkt. #12, is DENIED.

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2. Petitioner is DENIED a certificate of appealability. certificate from the court of appeals under Fed. R. App. P. 22. Entered this 30th day of August, 2010. BY THE COURT: /s/ BARBARA B. CRABB District Judge

Petitioner may seek a

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