Litschewski v. Dooley et al, No. 1:2015cv01017 - Document 18 (D.S.D. 2015)

Court Description: OPINION AND ORDER denying 13 Motion for Certificate of Appealability. Signed by U.S. District Judge Charles B. Kornmann on 5/7/15. (SKK)

Download PDF
Litschewski v. Dooley et al Doc. 18 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 I 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 Dockets.Justia.com 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 DATED this pursuant to Fed. R. App. P. 22. 7 .:.--·day of May, 2015. BY THE COURT: f ! I United States District Judge I f 'f ! 2 f

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.