United States District Court, D. Nebraska
RICKY J. SANDERS, Petitioner,
RICHARD CRUICKSHANK, Warden Nebraska Penitentiary; and SCOTT R. FRAKES, Director Nebraska Department of Correctional Services; Respondents.
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge.
matter is before the Court on the Motion for Leave to Appeal
In Forma Pauperis, ECF No. 49, and the Motion for Certificate
of Appealability, ECF No. 50, filed by Petitioner Ricky
Sanders. Sanders seeks to appeal from the Memorandum and
Order, ECF No. 43, and Judgment, ECF No. 44, denying his
Petition for Writ Habeas Corpus under 28 U.S.C. § 2254,
ECF No. 1. Sanders also seeks to appeal from the Memorandum
and Order, ECF No. 48, denying his Motion to Alter or Amend
Judgment, ECF No. 45. The Motions will be denied.
Rule of Appellate Procedure 24 governs Sanders's ability
to proceed in forma pauperis in this appeal. Before Sanders
may appeal the denial of his Petition under § 2254,
however, a “Certificate of Appealability” must
issue. Pursuant to the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214
(“AEDPA”), the right to appeal the denial of a
petition under § 2254 is governed by the certificate of
appealability requirements of 28 U.S.C. § 2253(c). 28
U.S.C. § 2253(c)(2) provides that a certificate of
appealability may issue only if the applicant has made a
substantial showing of the denial of a constitutional right:
(c)(1) Unless a circuit justice or judge issues a certificate
of appealability, an appeal may not be taken to the court of
. . . .
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph
(1) only if the applicant has made a substantial showing of
the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1)
shall indicate which specific issue or issues satisfy the
showing required by paragraph (2).
28 U.S.C. § 2253(c).
“substantial showing of the denial of a constitutional
right” requires a demonstration “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.'”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting
Barefoot v. Estelle, 463 U.S. 880, 893 & n.4
issues raised in Sanders's Petition were carefully
considered. For the reasons set forth in the Court's
previously issued Memorandums and Orders, ECF Nos. 43 and 48,
denying his Petition and Rule 59(e) Motion, the Court
concludes that Sanders has not made a substantial showing of
the denial of a constitutional right as required by 28 U.S.C.
Court also notes that Sanders's request for a certificate
of appealability may be moot because the time for filing a
notice of appeal has lapsed. Rule 11(b) of the Rules
Governing Section 2254 Cases in the United States
District Courts states “Federal Rule of Appellate
Procedure 4(a) governs the time to appeal an order entered
under these rules, ” and Rule 4(a) provides that a
notice of appeal “must be filed with the district clerk
within 30 days after entry of the judgment or order appealed
from.” The Court entered judgment on July 13, 2018, and
no notice of appeal has been filed in this case. Although
Sanders filed a post-judgment motion under Rule 59(e), ECF
No. 45, that motion did not extend the 30-day period for
filing a notice of appeal. Rule 11(a), Rules Governing
§ 2254 Cases in the United States District Courts
(stating “[a] motion to reconsider a denial does not
extend the time to appeal.”). Nor does the fact that
Sanders has not yet obtained a certificate of appealability.
See 16AA Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure §3968.1 (4th ed.)
(stating “a petitioner seeking appellate review of the
denial of a habeas petition must be sure to timely file the
notice of appeal, whether or not a [certificate of
appealability] has yet been obtained.”) (citing
Lomax v. Armontrout, 923 F.2d 574, 575 n.2 (8th Cir.
1991)). Thus, because Sanders failed to file a notice of
appeal, issuance of a certificate of appealability is likely
foregoing reasons, the Court will not grant Sanders's
request for a certificate of appealability, and it will not
grant his request for leave to appeal in forma pauperis. He
may seek a certificate of appealability and leave to appeal
in forma pauperis from the Court of Appeals. Fed. R. App. P.
24(a)(5); 28 U.S.C. § 2253(c)(1). Accordingly, IT IS
1. The Motion for Leave to Appeal In Forma Pauperis, ECF No.
49, filed by Petitioner Ricky ...